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Covid- 19 Vaccine in the Workplace

With the rollout of Covid-19 vaccinations well underway in NZ, employers need to be aware of the implications for their workforce. The vaccination programme offers light at the end of the tunnel, and business leaders have a critical role to play in encouraging uptake within their organisations. Current indications are that 70 per cent of the population will need to be vaccinated in order to achieve herd immunity.

This article provides an overview of the recommendations on how to approach Covid 19 vaccination in the workplace. It will focus on actions that you may take to prepare your business for the vaccination. In addition, we will explore some possible scenarios of vaccination refusal and look at how to deal with those team members.  

New Zealand Vaccine Covid-19 Strategy 

At the moment there are four pre-purchase agreements secured to date:

  • 750,000 courses from Pfizer/BioNTech;
  • 5 million courses from Janssen;
  • 3.8 million courses from the University of Oxford/AstraZeneca; and
  • 5.36 million courses from Novavax.

If proven to be safe and effective by New Zealand’s pharmaceuticals regulator Medsafe, they will provide broad population coverage for New Zealand and our Pacific neighbours.

All vaccine roll out will be dependent on Medsafe sign off.

Border and managed isolation quarantine (MIQ) workers

Border and managed isolation and quarantine (MIQ) workers will be vaccinated first. These are all the workers group who undergo mandatory COVID-19 testing as part of their work. 

  • cleaners
  • nurses who do health checks in MIQ
  • security staff
  • customs and border officials
  • airline staff
  • hotel workers.

We are already seeing the first immunisations given out to those working in the Auckland region; the stated aim is to commence vaccination of the general public in the second half of the year, from July 2021 onwards. 

The Government has prepared the rollout for the public covering three scenario. More information about it you may find here

What this means for employment

Creating a policy with a voluntarily approach

Organisations should follow a voluntary approach when setting out its aims and objectives in a policy. As well as the legal and financial risks of adopting a mandatory approach, engaging team members with a voluntary approach will build trust and encourage them to appreciate the benefits for themselves and others. The policy can help explain the benefits of vaccination and how they can contribute to wider public health by protecting themselves, other team members and the wider community by being vaccinated.

Educating and promoting

The wisest approach for business leaders to begin planning for the wider rollout of the vaccine is to encourage team members to be vaccinated and publicise the benefits to improve take up of the vaccine. Explaining and encouraging team members with impartial, factual information will keep them informed about the workplace impact and risks of COVID-19.

  • Offer team members consistent, accessible and factual safety data which promotes the genuine achievement of science in producing an effective vaccine.
  • Consider counteracting misinformation and conspiracy theory spread through social media. The education programme may promote the merits of vaccines in general, and the COVID vaccines specifically.

Keep everyone informed

Ensure that team members at all levels of organisation are well aware of policy and organisational approach to the vaccination.

Incentivising

You will be able to incentivise your team members to get vaccinated by: 

  • Allowing them to use sick leave to get vaccinated if they choose too
  • Paying travel costs for those who have to travel to receive the vaccine
  • Paying if it requires time off work 

What you can’t do

Ask for a vaccination without clarifying the purpose of it

  • The employer can insist on getting a vaccination record if it can clearly show why it requires such information, with the principals of the Privacy Act 2020. 

Vaccinate without an informed consent

  • 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

  • If a prospective team members refuses vaccination, you would need to consider carefully specific reason for refusal, case by case. 
  • Everyone is protected from unlawful discrimination in their employment by the Human Rights Act, this includes grounds of religious or ethical beliefs.
  • The reasons could be many and varied, including individuals who can’t have the vaccine (for example, on medical grounds), while others may be allergic or have trypanophobia (a fear of needles). These people could be protected by the disability provisions within the Equality Act 2010 if they refuse the vaccine those who can have the vaccine but refuse (for example, on religious or spiritual grounds) and those who can have it but have concerns and are uncertain (for example, due to a fear of vaccinations generally).
  • If beliefs that are held by a prospective team member are not reasonably held beliefs (e.g. example based on conspiracy theories), such beliefs would not be protected grounds of discrimination under the Human Rights Act.

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. 

In very limited circumstances it may be possible to consider termination of employment where:

  • The team member is in a role that subjected them to significant risk of contracting Covid -19 in their day to day duties (e.g. healthcare worker or aviation industry)
  • The employer considers all reasonable alternative risk management methods as alternative vaccination;
  • The employer considers whether it is reasonable to alter the team member’s duties or redeploy the team member elsewhere in the company as an alternative to vaccination;
  • That the team member's reasons for non-vaccination are not a protected ground of discrimination under Human Rights Act or are due to heath related issues (such a allergies) and
  • If after investigation and concluding there are no reasonable alternatives to manage the risk of exposure to Covid 19 effectively as vaccination, only then could an employer consider terminating the employment relationship. We recommend exercising extreme caution and seeking legal advice before taking any such action. 

Recommendations for employers

  1. Follow a voluntary approach when setting out aims and objectives in a vaccination policy
  2. Educate and promote the merits of vaccines in general, and the Covid vaccines specifically, which will also fight disinformation, and conspiracy theories around the vaccine
  3. Ensure that the policy, strategy and organisational approach is shared on every level of the organisation
  4. Incentivise your team members by giving them the option to take a sick day, pay transport to the venue etc. 
  5. When dealing with the vaccination refusal, ensure that every case is taken separately. In circumstances where an employer intends to dismiss the team member for vaccination refusal, it is recommended to seek expert/legal advice before making or acting on any decisions.