Covid 19 coronavirus: Employers seek answers on vaccine-refusing employees

By Emma Hatton for RNZ

Employers and lawyers are increasingly concerned and unsure about what to do if an employee refuses to receive a Covid-19 vaccination.

Chris Bowden, from the support group Employers Assistance, said questions about managing unvaccinated workers had been coming thick and fast, with bosses unsure what they legally could ask of employees and what their obligations were under health and safety laws.

“They know they can’t force medication on people. But where do they stand, what should they say, should they have policy in place and what can they do to cover themselves?”

He said many were concerned they might be liable under health and safety law if they got it wrong.

“It’s really due diligence and protection from a health and safety point of view because that’s where you’re going to come a cropper in – if you’re exposing customers or clients or other work members.”

A recent survey by the accounting software company Employment Hero found a third of businesses in New Zealand planned to make vaccination compulsory, despite an official order from the Government only applying to MIQ and some border workers.

Employment lawyer Bridget Smith said a business had obligations to keep all its staff and the general public safe.

“If they have an employee who declines to be vaccinated, work out whether they can keep their other employees and members of the public safe through other measures such as PPE.”

She said if that could not be done, there was scope to redeploy or dismiss the worker, but ultimately the law required the decision to be fair and reasonable.

“Was the employee entitled in those circumstances to say, ‘no I’m not going to get the vaccine’ and were there other ways that the employer could have accommodated that such as PPE or alternative duties and, if not, was the employer justified in terminating?”

She said it was a case of waiting to see the first cases go through the Employment Relations Authority.

“And that’s where we’re all becoming increasingly concerned about the delays in the authority, because we’ve already got significant backlog from Covid-19.”

Smith said all businesses should have a vaccine policy, including whether the employee can take paid leave to get the vaccine.

Bowden said employers should encourage staff to get the vaccine but, if workers refused, that needed to be handled as a risk assessment.

“If the company deems them to be at threat or creating undue risk, then they’re within their rights to start negotiations to adjust their roles accordingly.

“Obviously good faith and consultation and the process to follow there … you can’t go straight to the jugular and sack people but certainly you could justify a changed position.”

RNZ spoke to law firms who were unable to comment on this topic because they were already representing people challenging compulsory vaccines.

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