ERA upholds vaccine requirement

The Employment Relations Authority has released its first, and much anticipated, COVID-19 vaccination determination (available here). The Authority found that the New Zealand Customs Service (Customs) was justified in dismissing an employee who refused to receive the COVID-19 vaccine.

Background

In late 2020, the Government determined that border workers would be a priority to receive the COVID-19 vaccine. In response, Customs began providing vaccine information to its border staff. It also carried out a health and safety risk assessment based on Ministry of Health advice. It found that vaccination was a reasonably practicable step to reduce the risk of transmission for some of its employees, and this was communicated to employees along with the possibility of ‘redeployment’ for unvaccinated front line employees if they chose not to be vaccinated.

On 8 April 2021, the Prime Minister confirmed that “front line border workers” needed to be vaccinated to perform their roles, and this was followed by a Public Health Order requiring “affected persons” to be vaccinated by midnight 30 April 2021 to continue performing specified work.

Dismissal of the unvaccinated employee

The employee was an “affected person” holding a border protection officer role at a port. She was unvaccinated and had avoided engaging with Customs regarding her vaccination status. Between 21 April and 30 April 2021 the employee and Customs engaged about the possible termination of her employment. No redeployment options existed.

Ultimately, as the employee was an unvaccinated affected person, Customs had no choice but to end her employment on 30 April 2021 as the Public Health Order came into force at midnight that day.

Unjustified disadvantage and unjustified dismissal

The employee claimed she had been unjustifiably disadvantaged and unjustifiably dismissed.

The Authority found that Customs had provided ample information to staff, which was widely disseminated and easily accessible, about the vaccination process and its health and safety risk assessment. The conclusion of that risk assessment (that staff in the employee’s position needed to be vaccinated to perform the work safely) had been “thoroughly considered by Customs”. The Authority also found that Customs had given the employee “numerous” and “ample” opportunities for individual input. Customs was even prepared to rescind the employee’s termination during the notice period if the employee chose to become vaccinated.

The Authority held that the employee had not been unjustifiably disadvantaged or unjustifiably dismissed.

What does this mean for employers?

The Authority’s decision in this case was fact specific as the employee’s position was high risk and subject to the Public Health Order. However, prior to the Public Health Order coming into force, Customs had decided that the employee’s position could only be safely undertaken by a vaccinated worker. Customs made this decision following a comprehensive health and safety risk assessment. The Authority found that even if the Public Health Order hadn’t covered the employee’s position, Customs had, based on its risk assessment, the right to require that an employee who undertook this role was vaccinated. This aspect of the determination would seem to provide support to employers whose employees are not covered by Public Health Orders but may wish to require that some positions are only undertaken by vaccinated employees.

Before an employer is able to impose this requirement, it will need to undertake a health and safety risk assessment to determine what roles can only be undertaken by vaccinated employees. WorkSafe has provided some guidance on how to conduct these health and safety risk assessments (available here). The two key factors in this guidance for assessing whether a role should only be undertaken by a vaccinated person are:

  1. the likelihood of a worker being exposed to COVID-19 while performing the role; and
  2. the potential consequences of that exposure on others (e.g. community spread).

The WorkSafe guidance states that if there is a high likelihood that the person performing the role may be exposed to COVID-19 and the consequences would be significant for other people, it’s likely the role needs to be performed by a vaccinated person. If an employer determines that certain roles need to be performed by a vaccinated person, it will then need to undertake a full and fair consultation process before imposing this requirement on its employees. Once it has imposed that requirement it will then need to consider and discuss alternatives with employees who are unwilling to be vaccinated (e.g. potential redeployment to other suitable roles).

While the above process might be do-able for large employers, like Air New Zealand who have now required 50% of its positions to be undertaken by vaccinated people, it is unlikely to be something many already over-stretched and stressed employers are willing to take on. This has led to calls for ‘air-cover’ from the Government for employers who may consider vaccination requirements to be necessary but who may be reluctant to undertake the process set out above. This could range from the Government or WorkSafe outlining what type of positions are considered to be ‘high risk’, to further Public Health Orders. It would seem strange that unvaccinated people may be excluded from certain events or venues (as has been signaled by the Government), if the staff working at those events weren’t also required to be vaccinated.

The employee has challenged the Employment Relations Authority’s determination in the Employment Court and that challenge is due to be heard shortly. However, we would be extremely surprised if the Employment Court deviates significantly from the direction set out in this decision, given Customs are essentially just following the requirements of a Public Health order.

 

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