Can you force your employees to have the COVID-19 vaccine?

The recent increase in the COVID-19 alert level is a timely reminder of the importance of becoming vaccinated against COVID-19.

Although becoming vaccinated in New Zealand is not compulsory, in some workplaces it may be the preference that all eligible employees become vaccinated. Employment New Zealand has a position that safe and effective vaccines are essential to protect New Zealand and our Pacific neighbours from COVID-19.

In some places, for health & safety reasons for particular roles, vaccination may be compulsory. These would be roles where mandatory COVID-19 testing under the COVID-19 Public Health Response (Required Testing) order 2020, is required for that role. Or where there is a high likelihood of exposure to COVID-19 in the workplace.

So can you, as an employer, force your employees to obtain the vaccine? For a definitive determination for your particular workplace, you are encouraged to obtain legal advice. However, unless the role or workplace requires that level of protection, the short answer is no, vaccination can not be enforced.

In assessing your vaccination policy, generally you have a balancing act to consider between your obligations under Health & Safety regulations as a Persons conducting a business or undertaking (PCBUs) and ensuring you aren’t discriminating against employees under the Human Rights Act or affecting the right to refuse medical treatment under the New Zealand Bill of Rights Act. A cooperative approach in the workplace is the ideal scenario with clear communication provided to employees as to the employers’ preference towards obtaining the vaccine or not. If it is your preference that employees obtain the vaccine, their volunteering their situation would be preferable in assessing the status of the workplace. If they refuse to advise their status it is warranted to assume they are not vaccinated (although the employee must be informed of the determination).

To enforce being vaccinated to continue in employment, an employer must demonstrate a clear health and safety risk to not being vaccinated, in terms of exposure for other employees and the public and the workplace. If an employee refuses to be vaccinated, consultation on their on-going role, its requirements, alternatives, and other consequences must be discussed.

Other than in this circumstance, it is unlikely that an employer can force an employee to become vaccinated and considering dismissal for that reason is likely to lead to an unwinnable employment dispute. Having an open, communicative environment, including providing time off to attend vaccination appointments is likely to lead to the highest levels of vaccination by employees in the workplace.

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