Managing staff who do not vaccinate

22 March 2021

Many employers have no desire to force the issue, but employers with employees in the front line, and therefore at higher risk of exposure to COVID, are naturally concerned about what they can do with employees who do not wish to be vaccinated.  Other employers may prefer their employees to be vaccinated in order to minimise the risk of people getting COVID; and potentially forcing the closure of part or all of their operations for a period. 

One thing is for sure you can’t force someone to vaccinate.  To start you need to adopt a high engagement model where employees are educated about the risks and benefits of being vaccinated; and given encouragement to do so.  But the question remains, what can you lawfully do to minimise your risk in respect of non-vaccinated employees? 

Existing Employees: 

Employers are faced with what we regard as an impossible ‘triangle’ between their competing obligations under the Employment Relations Act, Health and Safety at Work Act and the Human Rights Act. 

In the current environment the bigger of those risks for an employer is likely to be failing to keep people safe.  As a result, there is more merit in adopting a health and safety strategy, rather than looking to employment terms and conditions to try and justify what you want to do. 

As with any health and safety issue, the starting point is to conduct a risk assessment.  That needs to be a case by case analysis for each employee, or at least a case by case analysis of a particular work category. 

If a role does present a health and safety risk to an employee who has not been vaccinated, you have an obligation to eliminate the risk so far as is reasonably practicable and, if that is not possible, to minimise the risk as far as is reasonably practicable (arguably there is much less risk for other people who have been vaccinated). 

The responses may range from providing certain PPE to the employee, to ultimately having to move the employee away from the hazard and into another role with lower exposure to the risk of COVID.  

That needs to be managed through a careful process of genuinely engaging with the employee concerned and fully consulting them. 

The employee may challenge your final decision, particularly where the consequence is loss of a significant financial benefit/allowance or some other form of disadvantage, such as a move to a different work location.  Whether you succeed or not will depend on the merits of the case, including the level of risk the employee would otherwise have faced; and the fairness of the process undertaken.

There may be more justification for doing this now, when most of the population is not vaccinated, than further down the track when most people are vaccinated with some level of herd immunity developing. 

New Employees: 

You may be thinking that with new hires it’s a simple matter of only hiring people who have been vaccinated, or those who accept a condition of employment that they will have one within a specified time period, because there is no disadvantage in respect of losing existing terms and conditions of employment. 

The first question is whether it’s reasonable to ask a candidate whether they have been vaccinated; and how that may be proven.  The next question is whether it’s reasonable to make vaccination a pre-requisite for a role.  

The only possible prohibited ground of discrimination to consider under the Human Rights Act is that of disability.  That includes “physical disability or impairment, physical illness, psychiatric illness, intellectual or psychological disability or impairment, any other loss or abnormality of psychological, physiological, or anatomical structure or function, reliance on a guide dog, wheelchair, or other remedial means and the presence in the body of organisms capable of causing illness”, none of which relate to the matter of COVID vaccination.  

Moreover, section 29 enables different treatment based on disability where “the environment in which the duties of the position are to be performed or the nature of those duties, or of some of them, is such that the person could perform those duties only with a risk of harm to that person or to others, including the risk of infecting others with an illness, and it is not reasonable to take that risk”. 

While a mandatory policy that all new employees be vaccinated, regardless of their exposure to risk, may be lawful, some may perceive that as a step too far. 

There is already increasing scrutiny of employer hiring decisions, particularly in regard to increased focus on diversity, because discrimination based on grounds of gender, colour, race and ethnic or national origins is unlawful.  

While discrimination on grounds of an applicant not being vaccinated may be lawful, it would be reasonable to expect greater scrutiny of hiring decisions to determine whether the issue of vaccinations was a determining factor.  In the end, you will be judged on the reasonableness of your actions in the particular circumstances concerned.