"No Jab, No Job "– Customs Employee Justifiably Dismissed after Refusing Vaccine

A lot of our clients have been asking us about COVID-19 vaccines, in particular whether they can require their employees to have vaccines. The Employment Relations Authority (Authority) has recently released its first determination on the subject: GF v New Zealand Customs Service [2021] NZERA 382.

This case involved a New Zealand Customs Service (Customs) employee who was dismissed following their refusal to have the Pfizer COVID-19 vaccine. The Employee also argued that they had been unjustifiably disadvantaged in their employment.

The Employee was a ‘front line border worker’ and was subject to the COVID-19 Public Health Response (Vaccinations) Order 2021. In addition to this, Customs had undertaken a health and safety risk assessment and determined that vaccination was required for the Employee’s particular role, which was communicated to the Employee. The Employee refused to be vaccinated and would not explain why, other than citing the New Zealand Bill of Rights Act 1990. After consulting with the Employee and exploring the possibility of redeploying the Employee to another role, Customs dismissed the Employee.

The Authority held that:

the dismissal was justified;
the Employee had not suffered any disadvantage;
Customs had not breached its good faith obligations; and
costs should be awarded against the Employee, if the parties cannot come to an arrangement regarding costs.

In light of this case, we set out some general information and answer some common questions regarding having vaccine requirements below.

Employers have obligations under the Employment Relations Act 2000 (ER Act) to be fair and reasonable to their employees. They also have wider obligations to all people at the workplace (not just to employees) as a Person in Control of a Business or Undertaking (PCBU) under the Health and Safety at Work Act 2015 (HASWA). Given a vaccination is medical treatment that all individuals have the right to refuse, there are also considerations under the Human Rights Act 1993 (HR Act), as well as under Privacy Act 2020 (Privacy Act).

Vaccines should be considered as part of a business’s usual health and safety assessments and protocols. It is important that to consult up-to-date public health guidance as this can change relatively frequently. Other infection prevention and control measures, such as masks, good hygiene, and social distancing, must still be used even if employees are vaccinated.

Can I require my employees to have the vaccine?

Employers cannot require their employees to be vaccinated as this would be a breach of Human Rights legislation. However, employers are able to have a policy that certain work may only be undertaken by vaccinated people. Employers must do a health and safety risk assessment to support requiring a specific role to be performed by a vaccinated person. WorkSafe has stated that the risk assessment must show that:

There is a high risk that the person performing the role may be exposed to COVID-19; and
There is a high risk that the person performing the role may expose others to COVID-19 if it is contracted. Whether there is regular contact with immunocompromised or other people who are at high risk of severe illness if they contract COVID-19 should also be considered.

While employers cannot require employees to have vaccinations, they can support those who choose to have the vaccine in the following ways:

Allow employees time off to have vaccinations without having to use annual leave or unpaid leave; and
Provide employees with information about the importance and benefits of having a COVID-19 vaccine.

What if I have a job that meets the risk criteria for requiring vaccination, but an employee in that role refuses to be vaccinated?

The first step in this situation is to ascertain why the employee refuses to be vaccinated, as this could be due to medical/health or other practical reasons. The employer should then try to address any practical barriers, for example the employee may simply need some time off work to attend an appointment.

It is important to note that employers and other PCBUs are not the only parties that have obligations under the HASWA. The Customs case notes the following about section 45 of the HASWA:

This Act bestows a duty on a worker to take “reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons” and to comply and co-operate with any reasonable policy or procedure of the employing agency.

Despite this, employees may still refuse to be vaccinated, as is their right. If an employee refuses to have the vaccine for religious or other beliefs or for medical reasons, it is important to tread carefully. The employer must comply with their usual employment law and good faith obligations. The employer must follow a fair process, involving:

Writing to the employee, reiterating that being vaccinated is a requirement of the role and providing all relevant information to the employee, including the health and safety risk assessment showing that the role carries a high risk of contracting and transmitting COVID-19;
Advising the employee of their right to be represented throughout the process;
Inviting the employee to a meeting to discuss the employee’s concerns and reasons for not being vaccinated;
Advising the employee that if they do not get vaccinated and there are no other alternatives then their employment may be terminated; and
Should the employee continue to refuse to be vaccinated, exploring other alternatives (e.g. changing roles, adjusting duties or work hours, or utilising leave where applicable) and seeking the employee’s input/feedback on other alternatives.

Provided the employer can demonstrate that the role carries a high risk of contracting and transmitting COVID-19, that they have followed a fair process, and that there are no other suitable alternatives to dismissal, a dismissal in such circumstances is likely to be justifiable if challenged. However, such processes are easy to get wrong, and we strongly recommend seeking legal advice before proceeding.

Can I ask prospective employees if they are vaccinated?

Vaccination status is personal information and is therefore protected by the Privacy Act 2020. This situation is similar to asking prospective employees about any medical conditions – an employer can only ask about vaccination if vaccination is required for the role. As with all personal information, care must be taken in the way this information is collected, stored and used.

For more information about COVID-19 vaccines and your employment law obligations, see the following websites:

Saunders & Co Lawyers are available by phone and email to provide legal advice and guidance. For more information and specific legal advice on your employment relations and health and safety obligations please contact us at the below details:

Andrew Riches (Partner)

Email: andrew.riches@saunders.co.nz

Mobile: 021 982 115

Claire McCool (Senior Associate)

Email: claire.mccool@saunders.co.nz

Mobile: 021 885 086

Deborah Hendry (Lawyer)

Email: deborah.hendry@saunders.co.nz

Mobile: 022 153 0220