To Jab or Not to Jab

13 January 2021

To Jab or Not to Jab

The arrival of 2021 follows in the shadow of 2020 – the Coronavirus. This is one bug determined not to give up easily. For some time yet we can expect to have our lives affected in some way, either directly or indirectly, by Coronavirus.

13 January 2021

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.

How does the Coronavirus vaccine compare to the winter flu-jab?

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.

What are the employer’s obligations?

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.

Section 36 of the HSWA imposes the following duties on a PCBU:

A PCBU must ensure, so far as is reasonably practicable, the health and safety of:

workers who work for the PCBU, while the workers are at work in the business or undertaking; and
workers whose activities in carrying out work are influenced or directed by the PCBU, while the workers are carrying out the work.
other people – that they are not put at risk from work carried out as part of the conduct of the business or undertaking.

Without limiting these duties, a PCBU must ensure, so far as is reasonably practicable:

the provision and maintenance of a work environment that is without risks to health and safety; and
the provision and maintenance of safe plant and structures; and
the provision and maintenance of safe systems of work; and
the safe use, handling, and storage of plant, substances, and structures; and
the provision of adequate facilities for the welfare of workers at work in carrying out work for the business or undertaking, including ensuring access to those facilities; and
the provision of any information, training, instruction, or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
that the health of workers and the conditions at the workplace are monitored for the purpose of preventing injury or illness of workers arising from the conduct of the business or undertaking.

Covid Safety Policy

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.

If you do update your COVID Safety Policy so that it requires your staff to be vaccinated, as well as take all the other required precautions, the policy should be clear on why you require staff to be vaccinated and should clearly state the consequences if an employee declines the vaccination.

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.

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