Lawyer: Vaccine policy likely to spark challenge
Air New Zealand’s proposed mandatory vaccination regime, if implemented, will “undoubtedly” be challenged by workers who lose their jobs, says employment lawyer Jennifer Mills.
The airline is consulting staff and unions on a plan to introduce its own mandatory vaccine policy for up to 4100 workers who are not covered by government orders for frontline border staff. A union has raised concerns, saying there don’t appear to be enough jobs to redeploy those who don’t take the vaccine.
“Provided Air New Zealand can justify its decision on health and safety grounds and redeployment has been carefully considered, there could be situations where some employees would justifiably lose their jobs if they remain unvaccinated,” says Mills.
“It is a complex area of the law with many competing interests. There is no bright line test and there will unlikely be a clear answer without litigation in many cases.”
Under the Covid-19 Public Health Response (Vaccinations) Order 2021, certain workers in particular workplaces are required to be vaccinated, in order to continue performing their work.
Specifically, a designated frontline worker must not carry out certain work unless they are vaccinated, and employers must not allow an “affected person” to carry out certain work, unless it is satisfied they are vaccinated.
The order does not prescribe or specify what happens if a worker refuses or fails to be vaccinated.
That has been left entirely to each individual employer to manage, in accordance with our employment laws, says Mills, in part of a detailed analysis of the issue.
Mills says although the Bill of Rights Act is not directly applicable when managing employment relationships, the fundamental rights within it can be influential on the Employment Relations Authority and Employment Court in determining “what a fair and reasonable employer could have done in all the circumstances” under the law.
She says section 11 of the Bill of Rights Act states that everyone has the right to refuse to undergo any medical treatment.
“Although the Bill of Rights Act has limited application to an employer’s decision, our common law has long accepted that the consent of a patient was a fundamental prerequisite to any medical treatment.”
Employers cannot force or compel any employee to be vaccinated against their will.
However, in a job, the issue is not whether a worker is subjected to involuntary medical treatment, despite their lawful right to refuse. Rather, the issue is whether an employer has good cause to justify its actions (including dismissal) when an employee has not received a vaccination.
“In our view, an employee cannot successfully argue that a fair and reasonable employer could not in any circumstances take adverse actions (including dismissal) against an employee who is not vaccinated. When taken to its logical end, such an argument would require the courts to uphold an individual’s right to refuse medical treatment, even if the exercise of that right could detrimentally affect the rights or interests of other people,” says Mills, who is director of Jennifer Mills & Associates, an employment, health and safety, and immigration law firm based in Auckland.
“In our view, some employers may determine that certain work or roles must only be performed by vaccinated workers, following a proper risk assessment.”
Employees need to be explicitly warned (preferably in writing) and given a reasonable opportunity to reconsider and to get vaccinated, knowing the potential consequences of failing to do so.
“There is a significant degree of uncertainty. Until the Employment Court directly confronts this difficult issue, it is not clear how the relevant competing rights and interests would be assessed and balanced,” says Mills.