On the horizon however, is the promise of some relief in the form of a vaccine. Unfortunately, here in faraway New Zealand we must wait until the second quarter of this year before we see the vaccine starting to roll out. I’ll leave the pros and cons of waiting that long to other, more qualified voices to comment on. In the meantime, employers need to be turning their minds to what the vaccine means for them and their business.
Most businesses are well versed in the practice of offering the winter flu-jab to staff. The question employers now face is; how does the Coronavirus vaccine fit into your plans for 2021? While the Government has stated in their December 2020 Vaccine Planning that the Coronavirus vaccine will be free for all New Zealanders, the Government also states it will not be mandatory to have the vaccine.
This could create a dilemma when an employer has staff who decline to take the vaccine. What would this mean for your business? What does it mean for the on-going employment of your staff? There is no clear answer. However, I would suggest you consider the type of work and the sector within which you operate. This will dictate what you may need to consider when it comes to staff having or not having the vaccine.
The starting point, in my view, is to look at your obligations as a person conducting a business or undertaking (PCBU) under the Health and Safety at Work Act 2015 (HSWA). Section 30 (1) of this Act imposes a duty on you as an employer to eliminate risks to health and safety, so far as is reasonably practicable and, if not reasonably practicable to do this, you must minimise those risks so far as is reasonably practicable.
A PCBU must ensure, so far as is reasonably practicable, the health and safety of:
With the above obligations in mind, you should consider updating – or if you do not already have one – create your COVID Safety Policy for how your business will respond to not just the Coronavirus vaccine but COVID-19 in general, to ensure you are meeting your obligations as a PCBU. You must consult with your staff, regardless of whether you are updating or creating your Policy, to get their input on what they would consider an appropriate approach to COVID for your workplace. Where you have one, you should involve your health and safety committee in the formulation of your policy. You could also consult with other organisations in your sector and find out what they are doing to support their staff.
If your business is in a sector where there is a higher risk of employees being exposed to or contracting Coronavirus, you may be able to set a higher bar on expectations of your employees with regard to being required to have received the Coronavirus vaccination. This would particularly be the case of hospital, rest home, medical centre, and possibly even school staff, where there would be a significantly higher risk and potential for serious harm.
Those consequences could include your right, as an employer, to take disciplinary action against an employee for breaching your COVID Safety Policy. A serious breach of COVID Safety Policy can be grounds for dismissal. However, you will need to factor in all circumstances before you decide whether it’s fair and reasonable to dismiss an employee for any breach of policy. For a lower risk environment, you do not have to create a new role to accommodate someone who declines the vaccination. However, before considering termination, you should consider redeployment or a change in duties, where this is both practicable and reasonable.
Be aware that a breach of a COVID Safety Policy in a business which is relatively low risk would and should be handled differently than one in which an outbreak could have potentially significant and dangerous outcomes.
Finally, you should also consider whether or not you have provided your employees with adequate health and safety training and/or briefing on your COVID Safety Policy. It is not sufficient to just implement a COVID Safety Policy; you must also take all reasonable and practicable steps to ensure your staff understand both its content and the consequences for non-compliance.