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While the New Zealand Courts are yet to consider the Covid-19 Vaccine issue in the workplace specifically, the current law is clear - you cannot force your employees to receive the Covid-19 Vaccine. Section 11 of the New Zealand Bill of Rights Act 1990 protects every person’s right to refuse medical treatment. Further, section 21 of the Human Rights Act 1993 makes it illegal to discriminate against anyone for their religious and/or ethical beliefs.
Unfortunately, the Covid-19 Pandemic presents a very real health and safety risk to employees and workplaces. As an employer, you have a duty of care towards your employees to take all reasonably practicable steps to either eliminate or minimise health and safety risks. In line with the Ministry of Health guidelines, the Covid-19 Vaccine is the primary long-term means of achieving this in the community, and the workplace. Employers should therefore actively facilitate and encourage their employees to receive the Covid-19 Vaccine. This includes providing time off to receive the Covid-19 Vaccine.
If an employee refuses to receive the Covid-19 Vaccine, and that employee’s role is not subject to a Health Order, it becomes a health and safety matter. This will ultimately involve an investigation into the employee’s role, tasks and duties, and the risk of exposure to Covid-19. The investigation needs to include thorough consultation with the employee. The ultimate determination will be fact specific. If the employee is unable to conduct their duties in a safe manner without receiving the Covid-19 Vaccine and there are no other protective measures that can be implemented (i.e. wearing PPE), then you as the employer will need to make decisions about what to do with that particular employee.
There are likely to be very few roles where redundancy could be substantially justified and so redundancy should be seen as a last resort. Other fair and reasonable options might include redeployment of the employee with your organisation, or amending the employee’s duties.
As with all things employment related, process is key. As an employer, even if you think a course of action is substantially justified, you need to follow a fair and reasonable process before making any decision. It is important that you have a plan before taking any steps, and we can help you with this.
For now, a prudent step would be to update your Employment Agreement wording for any new employees and current employees (by agreement only). You should also update your Health and Safety Policies to account for the Covid-19 Vaccine. We can help you with this if need be. Oliver Moorcroft and Josh Dennis are Harris Tate’s employment law experts.