Will employers be able to make COVID-19 vaccinations mandatory in the workplace?

The Pfiser-BioNTECH COVID-19 vaccine was provisionally approved in New Zealand on 3 February 2021. Employers must now consider the practical implication of this in the workplace.

It is not unlawful for an employer to endorse vaccination, this includes if a employer has the ability to offer vaccinations in-house or during work time.

The question is whether an employer can make vaccinations mandatory.

The New Zealand Bill of Rights Act includes a right to refuse medical treatment. A vaccination is medical treatment. In other words, vaccination could not become mandatory without a change in the law.

To avoid an unfair dismissal claim, an employer would have to prove that vaccination is a reasonable health and safety measure. This would include assessing the genuine health risk of an employee who is not vaccinated and the risk of them becoming infected.

In certain professions like healthcare, aged care and frontline emergency responders, practitioners say vaccinations could be considered a reasonable health and safety measure. The same applies to the aviation industry.

One argument that could be raised by an employee is why a vaccination is necessary rather than the use of personal protection equipment (PPE).

Given that New Zealand workplaces have operated more or less safely without the protection of vaccines until now, it may be hard for an employer to take the view that if an employee is not vaccinated they are a health and safety risk.

MBIE will soon be updating businesses and employees with guidance about the upcoming COVID-19 immunisation programme. This will include employment law implications and will cover specific questions in relation to employment rights and obligations. Employers should ensure they are keeping up to date with the COVID-19 immunisation programme and having open conversations with employees.

Please contact one of our experienced Employment Law team if you have any further questions.