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Moved on – what does it mean?

Mandating vaccinations at the best of times is a vexed issue. It is even more so in the environment of a global pandemic where millions of people to date have died of COVID-19. With the development of safe vaccinations to protect against the virus, New Zealand is starting to roll-out the vaccinations to people at most risk of contracting the disease before it is rolled-out to the general population (over 16 years old).

Covid19 VaccineThe roll-out has not gone as smoothly and as quickly as some people may like. There still remain a significant number of border workers that have not had the vaccination. It is not entirely clear if this group of workers are opposed to the vaccination or if this is due to availability issues. Whatever the case, the Prime Minister has now said unvaccinated border workers will be “moved” by the end of the month. What this means is unclear.

The law around this is complex

The starting point is section 11 of the Bill of Rights Act which states that “everyone has the right to refuse to undergo any medical treatment.”

It is often understood (incorrectly) that this right has unlimited application to all circumstances. However, it only applies to acts done by “any person or body in the performance of any function, power, or duty conferred or imposed on that person or body by or pursuant to law.” Further, the Employment Court has confirmed that employment relationships fall outside of the exercise of the performance of a public function and the right to refuse medical treatment does not apply in the employment context.

Under the Health and Safety at Work Act an employer must ensure, so far as is reasonably practicable, the health and safety of workers who work for it, as well as for the people in its workplace (whether they are other businesses workers, or visitors to the workplace).

This is a significant obligation on employers, but by virtue of the words ‘so far as is reasonably practicable’, this is not an absolute obligation to prevent anything harmful from ever happening and is subject to reasonable limits. For a lot of employers as the roll-out of the vaccination continues, this duty will start to minimise responsibilities from protecting the workplace from the risk of COVID-19. For other employers, in higher risk workplaces, this duty will continue until the world becomes a safer place again.

For those employers in higher risk workplaces, the obvious questions are whether they would be justified to mandate vaccination and/or whether they would be justified in “moving on” an unvaccinated worker in its workforce (whether by termination of employment or redeployment into any available lower risk roles).

Either of these scenarios are problematic from an employment law perspective.

Would a direction to have a COVID-19 vaccination be lawful and reasonable? The case of Engineering Printing and Manufacturing Union v Air New Zealand is somewhat analogous. The full Employment Court considered the legality of a drug testing policy that Air New Zealand was introducing. Under the policy, employees would be asked to provide written consent to the drug test, but an employee refusing to do so or to undergo the test would face the same consequences as in other like situations where an instruction is refused. The Court accepted that the employer’s health and safety obligations made it reasonable for employers to discharge their duties by a variety of available practicable means, including drug testing in safety sensitive areas.

It was noted that a direction to take a drug test may be both lawful and reasonable and, if so, an employee cannot resist it on legal grounds. However, any disadvantage or dismissal that may ensue after a refusal is tested for lawfulness and reasonableness of the instruction as well as the fairness and reasonableness of the employer's actions in all the circumstances.

The Court went further to say that employees may have good reasons for either refusing drug tests or for returning positive tests that will mean that in spite of the direction to take the test being a lawful and reasonable instruction, such employees are not to be unjustifiably disadvantaged or dismissed in all the circumstances.

It is likely that in the context of vaccinations, which are an invasive procedure, there will be stronger and more ‘good reasons’ to refuse than there are reasons to refuse drug testing. As such, it may be more difficult to show that taking disciplinary action (either dismissing the employee or moving the employee into a less risky role) against an employee who refuses to get a vaccination is fair and reasonable.

The same issues arise in the situation where the employer does not require the employee to be vaccinated but uses the fact that the worker is unvaccinated as the reason to justify dismissing the worker or moving the worked into a less risky role (the Prime Minister’s so called “moving on”). The employer’s actions will be tested for lawfulness as well as the fairness and reasonableness of the employer's actions in all the circumstances.

Conclusion

The Government has said that it will not make COVID-19 vaccinations mandatory. That places some employers in an unenviable position.

Employers in areas of higher risk in relation to COVID-19 should get legal advice on their risks if they do not take reasonable precautions to protect their workforce or visitors to their workplace from the potential risks of unvaccinated workers. They will need to balance that analysis against the potential risks from either mandating COVID-19 vaccination and/or “moving on” workers.