2021 the year of the vaccine - what are your responsibilities as an employer?
COVID-19 vaccines will play a critical role in protecting the health and wellbeing of people in NZ. The programme will support our social, economic and cultural recovery. Workplaces play a crucial role in encouraging uptake and assisting in making access to vaccines as easy as possible.
70% of the population will need to be vaccinated to achieve herd immunity.
As the Covid-19 Vaccine Programme gets underway it is important that you know: · what your responsibilities are; · how you can support your employees; · how you can contribute to the programme’s successful delivery.
The Covid-19 Vaccine is FREE and EVERYONE in NZ will be ELIGIBLE. It is NOT MANDATORY for the general public.
Individuals CAN CHOOSE whether to get vaccinated. However, some roles may require people to be vaccinated in order to perform them and some public health measures can override the NZ Bill of Rights Act 1990 (BORA) right to refuse to undergo any medical treatment, as long as the rights of the public to be protected from harm outweighs the rights of the individual to reject any medical treatment.
Vaccines are currently being rolled out throughout the country. Click here to find out when you can get a vaccine.
You can now apply for early vaccinations to enable travel overseas.
The following information applies to all working relationships, including those between a firm and an independent contractor:
Your Obligations · To provide a safe workplace. · Ensure relationships are established on a foundation of Good Faith - engage early, constructively and promote open two-way communication with workers and unions when considering vaccination issues within your workplace.
EMPLOYERS CANNOT REQUIRE AN INDIVIDUAL TO BE VACCINATED. However, if you think that vaccination may be necessary in order to comply with your obligations under the Health and Safety at Work Act 2015 and that specific role(s) may need to be performed by a vaccinated person it is recommended that you follow this process: this is likely to be justifiable in some workplaces such as hospitals, rest homes and retirement villages, airports, and other workplaces where frontline staff are more likely to be exposed to the virus or to vulnerable people.
1. Carry out a health and safety risk assessment with consideration, consultation and collaboration with workers, unions and other representatives. 2. Draft an Infection Control policy (or similar) requiring a COVID-19 vaccination to be compulsory for applicable roles. 3. Consult with your workers and consider their feedback before the policy is finalised and implemented. Any objections to the policy will need to be assessed on a case-by-case basis as some employees may have a medical or other valid reason for refusing to be vaccinated. 4. If required carry out negotiations to formally make the changes to the duties of roles requiring immunisation within a position description, and with reference to the Policy. This may also require or lead to variations to existing conditions of employment or contracts.
'For employers in industries or workplaces that pose less of a risk to Covid – 19 exposure, the ability to enforce vaccination on health and safety grounds would be more difficult to justify.'
Things to remember:
· The process must be fair and reasonable, and carried out in good faith.
· You must avoid unfair disadvantage.
· In consultation with employees and contractors, when you are considering individuals in vaccine required roles you may need to review different solutions to mitigate the risk, such as changing work arrangements e.g. require the employee to undertake specific COVID-19 protocols such as working from home, alternative duties e.g. moving the employee to a lower-risk role. This is because even though employers and employees may agree to a negotiated end of employment, it is generally expected that individual dismissals are unlikely to be justifiable in almost all cases.
· You can also require vaccination as a condition for new employees or contractors, but this must be reasonable for the role.
'MBIE have established the Early Resolution Service to assist employers and workers in resolving employment problems early and informally.'
For many employers’ roles requiring people to be vaccinated will not be necessary however Employers are being asked to ENCOURAGE and SUPPORT workers to become vaccinated.
You can achieve this by:
1. Providing workers with relevant and timely information from the Ministry of Health about vaccination and its benefits.
2. Allowing workers to be vaccinated during work hours without loss of pay.
3. In time, potentially facilitating on site vaccinations.
In addition to the above you may choose to develop an Infection Control Policy within your Health and Safety protocols which addresses vaccinations and any immunisation programmes. For many employers existing control measures such as physical distancing, environmental cleaning, use of hand sanitiser and ppe may satisfactorily meet your appropriate health and safety obligations.
'Create a voluntary approach to the policy when establishing aims and objectives. The goal is to engage team members, build trust, keep them informed and encourage them through consistent accessible factual information, education and promotion to understand the workplace impact, risks of Covid-19 and to appreciate the benefits of the vaccine for themselves, workmates, whanau and community.'
What you can’t do
· Ask for a vaccination without clarifying the purpose of it – you need to clearly show why you require such information within the principals of the Privacy Act 2020.
· You cannot make anyone get vaccinated, under the Bill of Rights Act 1990, every medical treatment requires informed consent.
· Dismiss someone if their refusal grounds are religion, ethical beliefs, medical etc
It will generally be unlawful to dismiss anyone who refuses vaccination and doing so present significant risk of finding of unjustified dismissal, claims of discrimination and breach of Human Rights.
· Not hire someone because they refuse to a vaccination - you would need to consider the specific reason for refusal, case by case.
'If after a review and consultation which concludes there are no reasonable alternatives to manage the risk of exposure to Covid 19 effectively as vaccination, only then can you consider terminating the employment relationship. Exercise extreme caution and seek legal advice before taking any such action.'
Links to relevant pages
Written by: Rebecca (Bexs) Waterhouse, Leafcutter HR & Recruitment Specialist
For HR support, advice, policy development, position reviews, and health and safety risk assessments please do not hesitate to contact us.