A few thoughts about vaccine mandates in the workplace

Introduction

This note has taken a few days to piece together.  One of the catalysts was an article in Newsroom last week with the inflammatory headline ‘Covid-19 infected workers could sue bosses over poor health and safety’. 

Despite my distaste for the tabloid appeal of the headline, on closer inspection the article did highlight an important point about an employer’s need to do what was reasonably practicable to manage its health & safety obligations.  And the article noted that one such step for doing what was “reasonably practicable” was to implement a worksite vaccination mandate.

I am aware, that for many weeks, many employers have been seeking clearer guidance from all ports, but particularly Government, about their ability to ask staff if they have been vaccinated.  The triggers have been a range of issues – including concerns about the employer’s health and safety obligations, the need to protect the business (including feedback from some staff with concerns about working alongside people who may not be vaccinated) and despite what some in the media might have us believe, a concerns for not only for the health of their employees but also that of employee’s families.

From where I sit, as a bread & butter commercial lawyer, this type of employer concern is unsurprising as we are being fed a daily diet of increasing numbers of COVID cases across Auckland as a result of the Delta outbreak that has seen Auckland operating under health mandates since 17 August – with no (objectively identifiable) end in sight. 

Background – from a public health / legal context

The Health Act 1956 enables the Government (acting through the D-G of Health) to make orders to protect the public health.  As a result, the Health Act has provided the necessary power for the Government to enforce aspects of our public health response to the COVID-19 pandemic – such as the, now familiar, alert levels.  Likely it will be the platform for the traffic light system being hinted at for a big reveal on Friday. 

Most recently, this power has been used to implement a limited number of vaccine mandates – such as those for border workers and those working in MIQs.  In the last week, new mandates have also been announced for workers in the health sector – and schools.

However, my take on the various public announcements, is that it is highly unlikely that the Government will mandate widespread vaccination.  Instead, it seems likely to continue with the current pattern of carrot and stick – in terms of encouraging community efforts to achieve a high level of public vaccination and indicating that some freedoms (such as the ability to participate in mass events over summer) will be off-limits to the un-vaccinated.

The carrot and stick approach can also be seen in the broader context of responses (and movements in alert levels – and boundaries) to data about community transmission.  These responses, are also being said to be determined in the context of data about vaccination levels.  For example, those affecting Northland, where an ultra-cautious approach was justified on the basis of low levels of vaccination in some sectors of the Northland community. 

Employer’s obligation – to maintain a safe and healthy workplace

An employer has a responsibility to maintain a safe and healthy workplace.  Employers must also comply with the terms on which they have hired their employees (i.e. employment agreement).

There is a view that simply imposing a workplace vaccine mandate on existing employees could run the risk of breaching those employment terms.  And that there are limits on the manner in which an employer could “require” existing employment terms to be varied.  (And there are suggestions that an employer can mandate vaccination for new recruits – but this raises raise questions about a two-tier workforce).

Nonetheless, there are (clearly) practical reasons that would justify an employer requiring an employee to be vaccinated.  To date, those reasons are limited to border and MIW workers.

Away from the border / MIQ

For those away from the border / MIQ, the current view is that a “no jab, no job” type edict is likely to infringe employees’ rights under the Bill of Rights Act.  Nonetheless, there is a growing body of legal commentary that there is scope for an employer to introduce a mandatory vaccine policy in a wider range of cases – on the basis of an assessment of the health and safety risk.  And this appears to be in line with Worksafe guidance.

Also likely is that, as more data and experience are known, the scope for making rules based on such a risk-based approach will expand.  But the problem for many employers is that this is reactive – and may be seen to be outflanked by growing number of COVID cases as a result of community transmission. 

It is evident that a much wider range of (employee) roles have a health & safety component – than just those which come within the narrow terms of the order for border and MIQ workers.  Also, as events in the last week have shown, with announcements of vaccine mandates for front line health workers and those working in schools, it is likely that the Government will extend the coverage of (public law) vaccine mandates.  For example, given the tragic circumstances in the first wave of COVID outbreaks last year, it seems unbelievable that we (still) do not have a vaccine mandates for workers in aged care facilities.

As mentioned above, there is commentary that any drive by an employer to require vaccination for existing employees performing roles that our outside the four walls of the border/MIQ (and schools and healthcare) mandates, should be justified by a risk-based approach.  Such an approach would require a proper risk assessment (on a role-by-role basis) to support the employer’s decision – and justify the decision on the grounds of meeting the employer’s workplace health & safety obligations. 

The key factors for any such risk assessment are likely to include (in that role):

• the risk that the person/s undertaking the role is exposed to COVID-19;

• there is a risk for community transmission; and

• there is interaction with people who are at risk of illness (such as those with other health conditions – which make them vulnerable).

Note:  any such risk assessment may change over time – by data of community transmission / the risk of transmission.

But employers walk a narrow tightrope, including concerns about:

• existing employment terms

• taking care not to discriminate against someone – under the Human Rights Act 1993
• probably, not infringing the rights and freedoms preserved by the Bill of Rights Act 1990 (e.g. freedom of thought, conscience, and religion)

The available commentary points to the need for the employer to:

• explain why the role is risk sensitive – and requires a vaccinated staff member to perform it

• consider other available options for risk management/mitigation – i.e. is vaccination necessary as well as / instead of such measures

• engage with affected employees – to develop a vaccination policy

• apply any such policy consistently.

This may be more complicated where the employer does not conduct a customer-facing business.  Employment lawyers can advise on the likely options should an employee in a ‘sensitive’ role refuse a vaccination.

Proof of vaccination / negative test

Seeking proof of vaccination – involves seeking personal data, and triggers the protections of the Privacy Act 1990.  So the employer needs good grounds to ask – to manage the health & safety of its workplace.  The relevant commentary suggests that employers should seek a voluntary disclosure to avoid Privacy Act complications – and could do so while making it clear that the employer will treat a refusal to answer as a “No”.

Importantly, during periods of community transmission, an employer can ask if employees have been to any locations of interest (or are a ‘close contact’) – and insist on proof of a negative COVID test before allowing the employee back to work.  This must be entirely in keeping with the employer’s role as a PCBU – who needs to take all reasonable steps to protect the health & safety of employees (and visitors) at their workplace.  (To provide there is a lawful purpose, under the Privacy Act, for asking, care is needed to explain why the information is needed).

Away from the front line / in an office

The available commentary suggests that implementing a mandatory vaxx policy is unlikely to be viable in a “standard” office environment.  This seems to be based on the view that our alert level regime means there is a very low risk of transmission (at least until employees are allowed back into the office at Level 2).

I am not sure what a “standard” office environment is – in 2021.  For example, many CBD workplaces have a mixture of accommodation and various high traffic areas – including those where outsiders, such as couriers and service people, may come into contact with quite a broad cross section of the staff. 

As a result, any risk-based assessment must look at office dynamics.  Employers should also strongly encourage vaccination – and undertake a staff survey staff to understand the levels of vaccination in the workplace.  By doing so, they can both justify any practical measures – and manage their concerns of their staff that they will be exposed to risk by returning to work in the office.

Staff incentives (to get a vaxx)

The media tell us a number of large-scale employers are running incentive schemes, with a mix of paid time off to get a jab – and cash and/or prize draws.

But there are concerns about discrimination – and the potential impact on employees who have (genuine) health reasons for not getting a vaxx.  Over the weekend, the D-G told the media that the number who should not get a jab may be as low as 100-200.  As a result, my gut feel for the sustainability of a discrimination argument is that it won’t stack up.  Employers will already know which staff has had an organ transplant or the like and have the ability to reach out to them in private.

Response to customer/client/supply chain mandates

Already, we have seen steps by some thought leaders – who have said that people who can’t provide proof they have been vaccinated against COVID-19 will not be allowed access to their sites. 

Despite some apparent concerns from Worksafe about the enforceability of such a requirement, there will be little that a visitor can do to challenge conditions of entry of someone else’s premises. 

Employers will need to respond to such a requirement by customer/client/supply chain.

Response to staff concerns

To date, the response to staff concerns seems to be a two-sided discussion. 

• If the Government / its experts, decides that a step down in alert levels is appropriate – that decision will enable employers to require a return to work.

• But employees still may have concerns – about the risk (say for those with underlying health issues or the immuno-compromised) of working shoulder-to-shoulder with the unvaccinated.

• In the last week there is a developing view (promoted by some thought leaders) that a commitment to providing a safe working environment and prioritising the health & safety of employees justifies a more proactive approach.  So, in recent days, a number of high-profile businesses have announced worksite vaxx policies.

• A number have undertaken a staff survey – and considered the feedback before making a vaxx policy.

• Armed with hard data (from a staff survey), making a worksite vaxx policy can be seen to be respectful of the health & safety concerns of staff.  But, some care will need to be taken to acknowledge individual rights and freedoms (including the decision to get a jab) and encourage those who are “vaccine hesitant” to make use of the public health advice available.

• For consistency, visitors would also need to advise their vaxx status before they enter the worksite – so the employer can seek to proactively manage the same risk as those for staff.

Final thoughts

By definition, any policy will need to be flexible (and labelled as such).  What we have learned about COVID-19 is that we still have much to learn.  But, businesses cannot survive with the sort of information vacuum that seems to be a factor of much of the current environment.  Who would be a public sector official?  And who gets the feeling that they watch the media bulletins and are learning about much of the content at the same time as the public and the business community? 

It is little wonder that a number of private sector thought leaders have stepped up to the plate / filled the void.