Vaccination mandates at work – Are they legal?

Covid-19

Many employees – and their bosses – would like to see a vaccination mandate in their workplace. No jab, no job. But it is not that simple.

Just before Christmas, Fletcher Building general manager Ross Taylor made an announcement. From February 15, all employees – whether they work on a construction site, in a warehouse, in a store, if they drive a truck, or even work from home – must be fully vaccinated against Covid-19.

No jab, no work, no exceptions.

It was a popular move in the business, Taylor said. Extensive consultation with employees had revealed that the vast majority of staff were in favor of the need to be vaccinated at work.

“Comments agreed that the best way for us to ensure our workplace is as safe as possible and to protect each other is for everyone to be fully immunized.”

But it was also a brave move, with Fletcher Building being one of the first New Zealand companies – certainly the largest – to implement a blanket ban on unvaccinated employees, regardless of where they worked in the country. ‘organization.

Ross Taylor says the company went through a thorough risk assessment process to arrive at its decision on the vaccine mandate. Photo: Supplied

The move will affect around 9,000 people, and it’s hard to imagine there won’t be job losses – and possibly backlash.

Other companies have offered a variety of different solutions to the vaccine mandate problem.

Several professional services firms – lawyers Bell Gully and Russell McVeagh and accountants PwC, for example – have blocked unvaccinated employees from coming to the office, but have allowed working from home.

The Warehouse Group has made it compulsory for anyone working in stores to be vaccinated; Foodstuffs says staff at head office, distribution centers and transport depots are to be stung, but following a disagreement with store owners, individual member stores can make their own decision on staff vaccinations .

Sealord took an entirely different approach – setting an 85% vaccination rate per area in the company. So, for example, 85% of the crew of a fishing boat, or workers in a fish processing plant, or people in an office must be vaccinated during any shift, said Sealord chief executive Doug Paulin to Newsroom.

“We believe this allows us to provide a safe working environment that protects our employees, but also recognizes the fact that people can choose whether or not to get vaccinated.

“Everyone has until January 24 to indicate if they’re going to take a hit, if their area is below 85 percent.”

Sealord will also test staff weekly across the business and use mask-wearing and distancing measures.

Paulin thinks a total ban on unvaccinated workers would have been completely legal — and easier to implement. It was also the most popular option for management. But he says he understands staff members’ desire for choice.

“It is complicated.”

Certainly is. Companies are forced to balance their moral and legal requirements to keep staff (and often customers and suppliers) safe with the various legal protections people have from being forced to have a shot. , to be unfairly dismissed and to be discriminated against. vs.

What the law says

Meanwhile, the law on vaccination mandates is changing – and largely untested.

The most recent and relevant piece of legislation is the “Public Health Response to COVID-19 (Immunization Assessment Tool) Regulations 2021”.

Announced on Dec. 13, the day before Ross Taylor’s announcement, and taking effect the following day, the new rules provide much more clarity about the risk factors companies should consider when considering whether to make vaccinations mandatory.

The assessment tool asks four questions (see below) and if an organization answers ‘yes’ to at least three, the government judges that it ‘would be reasonable to require vaccination of workers who perform this work’.

Source: Business.govt.nz Immunization Assessment Tool

But therein lies the rub – the questions aren’t about companies or even construction sites, they’re about individual jobs or roles.

And there are strict human rights criteria that stem from the hideous medical experiments carried out by Nazi doctors during World War II that protect people from having to undergo medical intervention. Meanwhile, anti-discrimination legislation aims to prevent companies from discriminating against people with certain religious or ethical beliefs.

“If a worker does not want to be vaccinated, but the tool indicates that it is reasonable to require vaccination for their job or part of their role, then you must comply with your employment law obligations. , such as acting in good faith and considering any other reasonable employment or redeployment arrangements, or other measures likely to minimize risk,” according to a explanation of the new rules on the government’s small business information website Business.govt.nz.

Karina McLuskie is a senior partner at the law firm Tompkins Wake. She says companies need to be careful with blanket vaccination mandates.

“Organizations must go through a risk assessment on a role-by-role basis to decide if a mandate is appropriate.

Karina McLuskie says it’s been a huge task for many companies to decide on a role-by-role basis whether a mandate is the right choice. Photo: Supplied

“The legislation says that before you consider firing someone, you must consider all reasonable alternatives.”

A company may decide that someone working from home – or in a protected part of an office – for the long term is not suitable. But maybe it’s okay.

Limited court rulings

So far, the very limited judgments of the courts have tended to side with the vaccine principals.

In September last year, the Employment Relations Authority threw a case of a New Zealand customs worker fired for refusing to be vaccinated. However, this case involved a Government Mandated Public Health Order making vaccination mandatory for people working at the border and in managed isolation facilities, therefore, does not necessarily help guide companies trying to offer policies outside of these health orders.

During this time, a historic case in Australia in December, a “site access requirement” for vaccines introduced by mining and energy company BHP was not illegal, despite the company failing to properly consult with employees.

“By relieving employers, the [judges] accepted that there were considerations weighing in favor of a finding that the site access requirement was reasonable,” reads a comment from Australian law firm Cooper Grace Ward. “This understood that it was aimed at ensuring the health and safety of workers and that it was a reasonably proportionate response to the risk created by COVID-19.

“The Full Panel observed that had BHP fulfilled its consultation obligations, these considerations would have provided a ‘strong case for a finding that the site access requirement was a reasonable direction’.”

The times have changed

As with so many things around Covid, the rules are changing fast. Last year, the general opinion was that vaccination mandates were probably the exception rather than the rule.

“Our view is that in most cases it will not be legal for employers to make vaccination compulsory for employees without also considering exceptions or exceptions to any constraints, if any,” writes Russell McVeagh, employment law expert, Kylie Dunn early 2021.

“Strong employer support for vaccination is legal. Making vaccination mandatory for employees may not be legal unless an employer indicates a willingness to consider exceptions.

Kylie Dunn says it’s not always clear to companies what the right thing to do is – legally or medically. Photo: Supplied

Things have changed since then, says Dunn. The arrival of the Delta and Omicron variants, for example, and a much more widespread acceptance of vaccination mandates in the community. The majority of New Zealanders seem quite willing to show their Covid pass to enter a café or the cinema.

But the legal risks to businesses from enforcing workplace vaccination mandates are still there. Dunn says the business leaders she works with have to make tough decisions about potential tenures.

“Everyone is trying to do the right thing, but it is not very clear what is the right thing medically or legally. So far the cases have been for vaccines prescribed by government health ordinance, they are not therefore not very useful.

She says the closest parallel is to mandatory workplace drug and alcohol testing. While some companies have attempted to introduce random testing across the board, courts have drawn a sharp distinction between positions that are security-sensitive and those that are not.

Air New Zealand is allowed to randomly test its pilots, but not its accountants.

This same principle could potentially see rulings against blanket vaccination mandates.

Lawyer Karina McLuskie predicts a few more lawsuits this year.

“We will see more employee action around these mandates. In Australia there has been an increase in cases, so it is likely that we will see more cases here as well. »

‘Confident and comfortable’ in our approach

Meanwhile, a spokesperson for Fletcher Building said the company believed its general mandate would not cause it legal problems, but that each company should make its own decision.

“We are confident and comfortable in the approach we have taken, including with our risk assessment to arrive at our decision to introduce a vaccine mandate. Each individual company should undertake its own risk assessment and obtain guidance in regards to one’s own activities and circumstances. . It is also fundamental to have a genuine and open engagement with their people.”

The spokesperson says there are implications for employee health and safety, even when unvaccinated staff are in positions where they can work from home.

“The risk assessment we have undertaken is based on everyone having to come into the office at some point for different things – for example teamwork, learning and development etc – and we want everyone to be safe when this happens.”

About Charles D. Goolsby

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