Can employees in aged care be required to get the COVID-19 vaccine?

Right now, there are a lot of discussions happening around New Zealand asking: Can employees in aged care be required to get the vaccine? Associate Jaenine Badenhorst of Rainey Collins Lawyers has cleared up some of the confusion, with some of the below facts (correct as of 7 September 2021). This article was republished with permission from Healthcare Compliance Solutions.

In Brief

Under the New Zealand Government’s vaccine campaign, it is not mandatory for employees to be vaccinated against the COVID-19 virus. Employers can therefore not require their employees to be vaccinated, unless it is necessary for health or safety reasons for a particular role.

If an employee works in a role where the risk of exposure to COVID-19 is higher and/or the consequences of contracting COVID-19 is more serious, the role may demand employees who are vaccinated to fill it. Due to the likely risk to the Health and Safety of aged individuals, it is highly likely to be reasonable for employers to require aged care worker roles to be filled be vaccinated individuals.

Health and Safety Laws

Persons conducting a business or undertaking (PCBUs) owe duties, under the Health and Safety at Work Act (“the HSW Act”) to ensure, as far as is reasonably practicable, the Health and Safety of its workers, patrons, customer and clients.

Covid-19 poses a risk to the Health and Safety of others, and therefore PCBUs are required to undertake a risk assessment in their particular work environment, so that they can implement safeguards and protocols to eliminate or reduce that risk.

Health and Safety risk assessments must be done in consultation with workers, unions, and other relevant representatives.

If a Health and Safety risk assessment of a particular role indicates that vaccination is necessary to comply with Health and Safety obligations, an employer may require whomever fills that role to be vaccinated.

It is important to note that rather than any ‘employee’ requiring vaccination, it is the particular ‘role’ that requires a vaccinated employee to carry it out.

When is vaccination likely to be required for the performance of a role?

Under the COVID-19 Public Health Response (Vaccinations) Order 2021, some work at the border can only be done by vaccinated workers. Employers in this case need not do individual Health and Safety risk assessments, as all work covered by the Order must only be done by vaccinated workers.

It is possible further Orders could be made to require other roles to be filled only by vaccinated individuals. In the absence of an Order, it will be up to each PCBU to make a decision for their work place, based on the Health and Safety risk assessments they have completed.

At present, PCBUs in the aged care sector will have to individually assess each role to determine whether it should be filled by a vaccinated person for Health and Safety reasons.

Health and Safety risk assessments will typically require vaccination if a role involves a high likelihood of exposure to COVID-19 in the workplace and/or significant consequences to others in regular contact with the individual performing that role. Examples will include roles where employees have lots of contact with customers and clients or other employees, especially where contact will be with vulnerable people.

Workers in aged care roles are likely to have contact with many individuals each week, and these individuals are likely to be more seriously affected by the impacts of COVID-19 if they contract it. It is therefore highly likely that many aged care worker roles will require vaccinated individuals to fill them, so that PCBUs are compliant with their obligations under the HSW Act.

In each case, however, the PCBU must assess the risk on a case-by-case basis. It is also important for the PCBU to consult with the workers in these roles, to help the PCBU assess the risk and ways to best eliminate or minimise it.

Recruiting new employees:

An employer may require vaccination for new employees, however this must be reasonable for the particular role.

Additionally, employers must take care to ensure they are not unlawfully discriminating under the Human Rights Act or affecting the right to refuse medical treatment under the New Zealand Bill of Rights Act.

Does an employee have to tell their employer if they have been vaccinated?

If an employee refuses to inform their employer of their vaccination status, the employer may assume that employee is not vaccinated in order to manage its Health and Safety obligations. If an employer makes this assumption, it must inform the employee of its intention to do so, and what the possible consequences may be.

What if vaccination is refused?

If an employee refuses vaccination following a risk assessment that identifies it as necessary for the employee’s role, an employer may consult with their employee to change their work arrangements, duties or leave, or restructure their work or employment conditions.

Redundancy or dismissal should be considered as final options after changes to the employee’s duties or redeployment to other roles have been considered. Without consideration of all reasonable alternatives, dismissal of an employee who refuses to be vaccinated will nearly always be unjustified.

Any changes, dismissals, or risk assessments must be carried out in good faith.

If there are concerns in your business in relation to employees receiving the COVID-19 vaccination, it is wise to speak with a professional experienced in the area.

About Jaenine Badenhorst

Jaenine Badenhorst
Jaenine Badenhorst is an Associate at Rainey Collins Lawyers.

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