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To Jab or Not to Jab

Updated: Jan 19, 2021

2021 has arrived and is now well and truly underway. With it follows the sceptre of 2020 – the Coronavirus. This is one bug that is determined to not give up easily. We can expect to continue to have our lives affected in some way, either directly or indirectly, by Coronavirus for some time yet.

There is however, relief on the horizon in the form of a vaccine. Unfortunately, here in little old New Zealand we must wait until the second quarter of the year before we see the vaccine starting to roll out. Without getting into the pros and cons of waiting that long, I’ll leave that to other more qualified voices to comment on, 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 for their staff. The question for employers 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 vaccine will be free for all New Zealanders they also state that having the vaccine will not be mandatory.

This may 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 their on-going employment?

There is no clear answer. However I would suggest that the type of work and the sector within which you operate 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 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 persons is 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 at work of workers 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.

So, with this 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 that 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 to see 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 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 high 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 spell out the consequences if an employee declines the vaccination.

Those consequences could include your right, as 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 the 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.

Just 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 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 take all reasonable and practicable steps to ensure your staff understand both its content and the consequences for non-compliance.

Contact McKone Consultancy if you require any advice in relation to this blog.

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