Now that there’s talk the Covid-19 vaccine being rolled out in Godzone Aotearoa New Zealand – and with a bit more of a concrete timeline than we’ve had before, can your employer give you an ultimatum – the jab or your job?

New Zealand Bill of Rights Act

Let’s get one thing straight, right up – employers cannot force medication or any kind of medical choice onto staff.  If they do, they’re breaching the NZ Bill of Rights Act.

Many employers offer flu jabs free of charge – these are solely at the discretion of each individual employee whether to accept or not.  The fact that they’re being offered for free kinda has an incentive attached to them – they’re saving the employee the cost of going to their local medical centre or GP and paying for the same thing.

However, the Covid-19 vaccine is going to be free anyway – because the object of the game is to strive for herd immunity in NZ.  So that leverage doesn’t exist with this vaccine.

the right to decline

As an employee, you have the personal right to refuse (or decline) on a number of fronts – all of which are 100% legal.  They are:

• personal choice,
• health,
• beliefs or religion,

and all of these means you are protected by law against being disadvantaged or discriminated against if you choose not to have the vaccine.

Of course, an uninformed – or heavy handed – employer may threaten to terminate or disadvantage employees who won’t get vaccinated.  If they do that, they’re skating on very thin ice because, legally, they cannot do that – it contravenes the NZ Bill of Rights Act, remember.

If, as an employee, you find yourself in that position of having to choose your job (or another perk on offer) OR your job, you then have the right to take a personal grievance out against your employer.

No employer, I’m sure, wants to have the distraction of defending itself to the Employment Relations Authority or maybe even a Court of law.

justification and process

justification

When it comes to “justification” – they’re looking at:

• Is the Employer reasonably justified in taking the action they have?
• Is the Employee reasonably justified in the action they took?

To defend their justification, they’ll have to look at the potential risks faced in the circumstances.

Of course, having COVID-19 and potentially another lockdown is not what anyone wants.  The justification could the the cost of human life.

Because anything to do with Health and Safety usually outweighs everything else in Employment Law when lives are at stake, this would indicate there is potentially reasonable justification for an Employer to require staff to get vaccinated in certain circumstances and industries.

Whether it would deem veterinary clinics one of those industries, who knows?  It would probably justify, however, say a rest home or human hospital.

Precedents

A recent parallel in Australia – the Fair Work commissioner, upheld an Employer’s decision to terminate a childcare centre’s worker for refusing a flu jab. The justification was they had the right and justification to protect the children in their care.

Arvida Group, a large NZ aged care provider, has recently said all new employees would need to consent to vaccination against Covid-19, as well as the flu.  This of course is easier to mandate for all new hires and to make it a condition of employment – it would be more difficult for existing staff.

Process

But what about “process”:   With this a court will look at:

• Has there been a fair process followed?
• Have the parties had full access to all information?
• Have the parties acted in good faith?
• Have all the options and alternatives been explored thoroughly?

Employers will find this much easier to roll out as a policy – or not – after consultation with staff.  So if you’re thinking of creating a vaccine policy now is a good time to start that process.

It’s important to keep in mind that with any roll out of a new policy is that they should be justified, and created and implemented in consultation with staff.

If you decide to ignore this then announcing a no jab no job policy will more than likely have you looking facing multiple personal grievances.