When it comes to the vaccine and vaccination the issues that require consideration are relatively novel. We have not experienced a pandemic of Covid-19’s reach and effect in modern times. Employers and employees will need to navigate different pieces of legislation, often adopting a first principles approach in working out what steps to take when contentious issues inevitably arise within workplaces.

In a church or Christian organisation there are many types of relationships that attract legal obligations. These include relationships with employees, volunteers, a congregation, parish, the parents of children who attend programmes, visitors, contractors and other organisations who hire out those buildings. These relationships can be grouped into two main areas of legal responsibility, namely 'employment' and 'health and safety'.

Employment Obligations

It is becoming increasingly common for churches and Christian organisations to employ staff rather than to rely entirely on volunteers. An important preliminary question is whether the relationships between, for example, a church and the pastors/administrative assistants should be labelled 'employment relationships'. From a legal sense, where a church is providing remuneration in some form to people who perform work, it is difficult to argue that those people do not in law have an employment relationship with that organisation.

Contractor Relationships

An independent contractor is someone who provides services in return for payment but they are in all respects working on behalf of themselves and not on behalf of the church or Christian organisation.

Health and Safety

Any organisation or person that has a place of work is responsible for the safety of anyone who enters that place of work. For a church or Christian organisation this can include staff, volunteers, church members, visitors and contractors. Under the Health and Safety at Work Act 2015, a person conducting a business or undertaking (PCBU) must ensure, so far as is reasonably practicable, the health and safety of its workers while at work. Employers and employees must adhere to a number of obligations, including the obligation to act in good faith when dealing with each other.

Every person in New Zealand has protections under the New Zealand Bill of Rights Act 1990 and/or the Employment Relations Act 2000. As such, an employee can decline to have a vaccination and employers cannot compel an employee to undergo medical treatment, including vaccination, in any situation.

Privacy issues

A person’s vaccination status is personal information under the Privacy Act 2020. In general, unless they have given their permission, employers are not allowed to share or obtain any information about whether or not their employees are vaccinated. However, justifiable reasons to ask for an employee’s vaccination status include a legitimate health and safety concern, or where certain roles must be performed by a vaccinated worker, such as staff at an MIQ facility or border security. Importantly, if employees do not want to tell their employer whether they are vaccinated or not, the employer can treat them as though they are unvaccinated but the employee needs to be told about the consequences. In any event, an organisation must consider how it gets its personal information. They must not collect information in a way which is unreasonably intrusive in the circumstances. Further, while an organisation may have a justifiable reason to know whether a person has been vaccinated, it does not necessarily need to know why a person is unable or chooses not to be vaccinated and an employee does not have to provide this information.

Employee considerations

Employees in roles that are covered by the Covid-19 Public Health Response (Vaccinations) Order 2021, and any further vaccination orders made under the Covid-19 Public Health Response Act 2020 (“the Health Orders”) are required by law to be vaccinated in order to perform these roles. To date these Health Orders cover specific workers, amongst other similar work groups. The education sector also require teachers to be vaccinated. In these situations, if an employee declines to be vaccinated (or declines to confirm if they are vaccinated or not), they may be subject to an investigation into the ongoing viability of their employment and the need to discuss alternative options with their employers. They will not be permitted to continue to work in high-risk environments until they are vaccinated.

For the rest of New Zealand’s workplaces, employers who would prefer their workforce to be vaccinated will need to follow a fair, reasonable and transparent process when dealing with an employee who declines to receive a vaccine or declines to advise of their vaccination status. The Ministry of Business, Innovation and Employment (MBIE) advise that employers can require a specific role to be performed by a vaccinated person, on condition that employers complete a health and safety risk assessment to support such a requirement. The assessment must be done in collaboration with workers, unions (if applicable) and other representatives. This risk assessment looks at the risk the employee poses against the nature of the industry (work environment) and the specific role they perform. The risk will need to be assessed on a case-by-case basis.

If an employer considers the role of the employee and/or workplace and PCBU in question to be high risk, the employer should assess in consultation with the employee what, if any, alternative working options there are for the employee to minimise the risk of contracting Covid-19. For example, can the employee work from home, wear appropriate PPE or be redeployed within the business to safer work.

In industries or workplaces that pose a low risk to Covid-19 exposure, the ability to enforce vaccination on health and safety grounds will be more difficult to justify.

Where the role of the employee is high risk and there are no viable alternative working arrangements, the employer may be left with little option but to consider termination of employment after a fair and transparent process. Before making a decision that affects an employee’s employment, that decision must satisfy the test of justification.

Work Safe have put out some guidance on how to conduct that health and safety risk assessment and the factors to take into account. Examples include close contact with vulnerable people, how vulnerable others are, and what the potential consequences are for those people catching Covid. The Ministry of Health also offers guidance on who falls under the vulnerable and non-vulnerable communities, and steps employers can take to mitigate risks before mandating vaccinations.

The rights of the workforce to assert not working alongside people unvaccinated depend on what is reasonable under the circumstances - if those people are immune compromised, have an immune compromised child at home or are pregnant, they could reasonably claim to be at risk . An employer has to look at the individual circumstances and their obligation under the Health and Safety Act to take all reasonable steps to ensure the safety of their workers. It is going to be circumstance specific. There is no one size fits all.

Insights into this unfolding area of law require reasonableness and justification. As the country navigates this stage of the vaccination rollout, it is important for employers to remain conscious of employees’ fundamental rights to refuse vaccinations, whilst staying conscious of the health and safety of employees and the wider obligations under the law for the safety of others and the community. There will be a balancing act and not all employers and organisations will take the same approach.

Next month I will discuss the government's Covid-19 Protection Framework and the Vaccine Certificate requirements.