No case law yet around vaccination

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Our region’s Covid-19 vaccination rates are high. But does not having one jeopardise your job? Aspiring Law senior lawyer and employment specialist Robbie Bryant, of Wanaka, explores the murky waters of no jab, no job.

Does no jab mean no job? The short answer is yes it can, in certain circumstances.

There are effectively two groups to consider: employees subject to mandatory vaccination orders, and those who aren’t.

In the first group, a failure to be vaccinated could give rise to an employer justifiably terminating an employee’s employment on the basis certain work must, by way of Government Order, be performed by a vaccinated person.

Take the case of GF v NZ Customs Service.

The employee, GF, was subject to a Government Order but did not get vaccinated. After a robust consultation process and risk assessment, GF’s employment was terminated.

The Employment Relations Authority concluded NZ Customs’ decision was justifiable.

Things become significantly more complicated and murkier with those who aren’t subject to a mandatory order.

With the rise of the Delta variant requiring some employees to be vaccinated, it may be easier to justify than previously.

Crucially, though, a thorough, genuine and impartial risk assessment must be done.

WorkSafe New Zealand has updated its guidelines on this, and these will likely evolve.

The guidelines should be the first port of call. The focus is on the work to be done and the risk associated with that.

Views about whether the person should, in any event, be vaccinated are irrelevant.

An employer’s usual process obligations remain, such as: understanding why an employee has not been vaccinated; placing tentative conclusions before the employee; getting the employee’s comments and genuinely considering them; providing all relevant information documented risk assessment.

The question will always be: “Were the actions of the employer those that a fair and reasonable employer could take in the circumstances?” There is no single blanket rule.

In my opinion, if an employer adheres to the above requirements and reaches a reasonably held conclusion that the relevant work needs to be performed by a vaccinated person, then, dismissal will likely be justifiable if an employee refuses to do so.

But at the time of writing this article, it would seem the majority of work can be performed safely by unvaccinated employees.

No definitive case law or guidance exists on the subject but it will come.

In the meantime, employers and advisers are in limbo, making best guesses in an unprecedented and rapidly developing situation.