Lawyers and employers are learning as they go about vaccinations in the workplace
The business community and unions are split on vaccine mandates.
But this time businesses were after a more black and white approach taking on legal responsibility by supporting mandating vaccinations, while unions believe employers must first educate and support.
Business NZ chief executive Kirk Hope said employers were after certainty and a mandate removed ambiguity.
“Employers are navigating quite a wide range of operating environments and with Delta being much more contagious and transmissible a lot of employers are really concerned about what the parameters are around what they can expect of their employees,” Hope said.
“Mandating vaccinations makes it easier for employers because there are less grey areas.”
Hope said if it came down to mandating vaccinations or another lockdown, business owners would likely favour mandates.
But Council for Trade Unions president Richard Wagstaff was concerned about employing vaccination mandates “too quickly”.
Wagstaff said the first priority was to “promote, encourage and educate” staff about vaccinations and remove barriers such as giving time off work to get vaccinated if need be.
“I can’t overemphasise that step enough because we’re concerned it’s being skipped. And if we’re trying to maximise vaccination uptake then the best way to do it is to support and encourage staff to get vaccinated.
“If we move too quickly to a ham-fisted approach forcing staff to get vaccinated then that may create further resistance and it will be inherently unfair.”
A workaround for the mandates have been incentives. This month companies NZX-listed Steel and Tube and telecommunications company Universal Communications Group both announced policies of monetary bonuses for staff who get vaccinated.
Wagstaff didn’t rule out monetary incentives to encourage vaccination uptake but said the priority for businesses should be “to remove disincentives” that limit workers’ access to getting vaccinated.
He said education had proven effective in distilling vaccine misinformation spread in workplaces.
But Hope believes a stronger incentive than a monetary one was having demarcations of what freedoms vaccinated people had over unvaccinated folk.
“If we move too quickly to a ham-fisted approach forcing staff to get vaccinated then that may create further resistance and it will be inherently unfair." – Richard Wagstaff, CTU
Hope said the rollout of digital vaccine passports for the general public would help with this.
“If I choose not to get vaccinated, that will restrict me from doing things that I might have been able to do pre-Covid. I genuinely think if people look at the issue that way then it's a pretty significant incentive to be vaccinated.”
Cullen Law senior associate Calum Cartwright said over the past couple of months he had been fielding calls from employers asking about their obligations about vaccination policies.
Cartwright said the starting point for most employers was to understand their health and safety obligations.
“Certainly mandating vaccines is arguably consistent with health and safety obligations, but it would likely depend on the circumstances of each employer.”
He said how exposed a business was to the general public - as well as issues such as the risk opening borders posed on the business or highly transmissible variants - also needed to be considered to justify a no jab, no job policy.
Vaccination rates plateauing in the United States resulted in President Joe Biden announcing a vaccine mandate.
In New Zealand 1.5 million people have been fully vaccinated - 30 percent of the total population and 36 percent of the eligible population. Meanwhile, 1.4 million Kiwis have received just one dose.
“We're in new territory at the moment. It's been so long since there was a pandemic like this.” – Calum Cartwright, Cullen Law
Cartwright said this was unlikely to happen in New Zealand because the circumstances in the US were different, with high hospitalisation and death rates putting pressure on their health system.
The right to refuse medical treatment under the New Zealand Bill of Rights limited the likelihood of a blanket mandate. More likely were more targeted mandates for specific roles, he said.
“We're in new territory at the moment. It's been so long since there was a pandemic like this. It's unprecedented.”
Cartwright said a lot of the concerns around vaccine mandates, outside of industries covered by the public health order, were still “up in the air”.
Earlier this month the Employment Relations Authority found that a Customs worker who was sacked after refusing to get vaccinated was not unjustifiably dismissed because her job was covered under the public health order mandating border workers to get vaccinated.
Cartwright said the public health order made this a straightforward case, but it was hard for lawyers to apply this decision to other employers.
The other consideration for lawyers was to see how a higher court would rule on a no jab, no job policy.
But under New Zealand employment law, most matters boiled down to the fair and reasonable test.
“I think any employer looking into dismissal of an employee because they refused to get vaccinated needs to seriously consider that employee's circumstances and the reasons why.
“Grounds may be due to medical reasons, such as they’re allergic or a genuine religious belief.”
