Wednesday October 20, 2021 12:30
Although it is unlikely that compulsory vaccination will be implemented in New Zealand for everyone any time soon, there is a case for certain workers in critical roles to be fully protected from being infected and transmitting the COVID- 19 virus whilst at work.
The Government has now mandated vaccination for health sector workers and teachers as a prerequisite for working in these roles.
Already, there is acceptance for the potential of a vaccination passport for overseas travel, major entertainment venues and perhaps hospitality settings, such as restaurants and bars. We will understand this better when the Government issues guidance, hopefully in the next few weeks.
Under the Human Rights Act - 1993 and the Privacy Act - 2020 a person does not have to divulge if they have had a vaccination or not, and a person conducting a business or undertaking (PCBU) of an organization is required to respect that.
A PCBU also has an obligation to meet the requirements of the NZ Health and Safety At Work Act - 2015 in providing primary duty of care in ensuring, so far as is reasonably practicable, the health and safety of its workers.
Finding an appropriate balance is a tricky dilemma and a new area of employment law.
There has been a recent challenge by a former employee of the New Zealand Customs Service (Customs) to the termination of her employment as a result of implementation of the COVID-19 Public Health Response (Vaccinations) Order made under the COVID-19 Public Health Response Act 2020. Having regard to the Order, and after conducting its own health and safety risk assessment, Customs determined that the person holding the border protection role, undertaken by the former employee, had to be vaccinated against COVID-19. The former employee was unwilling to be vaccinated and her employment was terminated. The former employee unsuccessfully argued that her termination of employment was unjustified before the Employment Relations Authority. The former employee has now filed a challenge to this determination with the Employment Court.
Separately, the former employee also challenged the lawfulness of the Vaccinations Order in the High Court. Part of her argument was that the Vaccinations Order was not a justified limitation of rights under the Bill of Rights Act 1990, and in particular the right to refuse to undergo any medical treatment and the right to free from discrimination. In the Wellington High Court, Justice Peter Churchman held that the limitations to these rights were justified and dismissed the former employee’s application for “judicial review” of the Vaccinations Order.
While this is a developing area of employment law, from a health and safety perspective, the case indicates that employers should be cognisant that a pathway must be worked out, through good faith consultation with workers in terms of identifying the kind of work/role that requires close contact with another person and a high likelihood of transmission of a virus such as COVID-19.
Following discussion, the next step is an assessment of health and safety risks, followed by the identification of controls necessary to minimise the likelihood of infection and limit the possible consequences. With COVID-19, particularly the Delta variant this process may lead to vaccination as the best possible protection and effectiveness in minimising the consequences of infection.
Your Securo consultant can assist you with an inspection of your work environment, the preparation of a role risk assessment and a hazard control plan.
Alternatively, you can contact Securo Head office on Telephone 0800 55 33 44 or message us through our website https://www.securo.co.nz/contactus
Note: the information contained in this newsletter is for informational purposes only and should not be taken as legal advice.