Can an employer force an employee to get the Covid-19 vaccination?

Can an employer force an employee to get the Covid-19 vaccination?

The first batch of Covid-19 vaccines landed on New Zealand shores yesterday (15 February 2021), and it is reported that vaccinations are to begin this Saturday 20 February. The Government have communicated that the frontline workforce will be vaccinated first, for example, border staff and MIQ workers. Vaccine roll-out to the general public is planned to occur in the second half of 2021.

But can employers require employees get the Covid-19 vaccination?

An employer making the Covid-19 vaccine a mandatory requirement for all employees would likely impact significantly on the individual rights and freedoms of the employee. Under the New Zealand Bill of Rights, people have the right to refuse to undergo any medical treatment. Therefore, it would likely not be considered that the employer could give “a lawful and reasonable direction” to an employee in requiring them to get the vaccine, and the employee would not need to comply.

However, this may depend on the nature of the work the employee is engaged in. If the employee is a healthcare worker, it may be possible that the employer could require vaccination to allow the employee to continue work as normal. This is due to the health risk an unvaccinated employee could pose to patients. In this situation, it may be reasonable for an employer to require the employee to receive the vaccine to continue work as normal, provided the employer can show there is a significant health and safety risk if the employee does not follow the direction, and there is no other way that the employer can reasonably allow for the unvaccinated employee to perform the work safely.

Practically, it is possible the health risk posed by an unvaccinated employee may be mitigated through the employee wearing a mask, or by the employee performing alternative duties. Therefore, it may be quite difficult for an employer to justify a mandatory vaccine requirement, and subsequently, any dismissals on the basis of an employee refusing to get vaccinated.

The Ministry of Business, Innovation and Employment (MBIE) has stated that it will soon provide guidance for employers and workers regarding the Covid-19 vaccination and the impact this will have on employment law.

For further insight and to keep up with the latest information surrounding the vaccine please visit the New Zealand COVID-19 official website here.

Author: Employment and H&S Team (Troy Wano, Rebecca Eaton and Jaye Atkin)