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Vaccinations and the workplace - Sidekick Legal Update

Kirsten Maclean —

While we continue to work through the ongoing Covid-19 and vaccination issues there remain lots of uncertainties for some employers, employees and business owners. However the more recent announcements have given some real clarity to those in retail and hospitality and other similar businesses who wish to take a no vaccination no entry approach.

We now have the Government Mandate that requires those in many high risk service industries (including health and education) to be vaccinated. What happens if your employees in these areas refuse to be vaccinated but also refuse to resign. This is something many employers are currently grappling with, and given the lack of legal test cases on these issues it is vital that you get legal advice on the appropriate processes to use in these circumstances.

We are also seeing many businesses and clients/customers stating that only vaccinated persons are allowed on site. Again, this throws up a whole lot of issues and considerations for those in industries where your workers may be placed on site elsewhere, such as construction sites and alternative medical venues. We have also seen some of the big commercial corporates such as Russell McVeigh and PWC say only visitors who have been vaccinated will be allowed into their buildings. This raises potential discrimination arguments and so it's vital if you as a business want to take such a stand, that you have the ability to offer your services online or by other methods, otherwise there could be potential discrimination claims raised. Also if you’re in the hospitality, retail and other similar industries wanting to take a no vaccination no entry approach, make sure you have done a risk assessment and have a visible policy/information letter available to customers/clients indicating your policy. These mandates are currently being challenged in the high court, and so while the outcome may be uncertain, the current Government directions and guidance are clear.

If you as an employer/business owner are considering taking such a stance with respect to your employees or visitors to your premises it is vital that you undertake a full and thorough health and safety risk assessment before making such a decision. Businesses have to make certain assessments in order to come to this decision. First, that it is lawful and reasonable to direct an employee to be vaccinated, and second, that the failure of an affected employee to follow a lawful and reasonable instruction to be vaccinated would put the health and safety of the employer’s workers, and other persons to whom the employer owes health and safety obligations (i.e. its own clients or customers), at risk. A similar assessment would need to be undertaken in respect of visitors to your premises.

Given the entirely complex and untested nature of the current times, it's crucial you take some legal advice before making any decisions that could potentially have adverse effects on your employees, clients or customers.

If you want to discuss further feel free to get in touch with Kirsten Maclean from Sidekick Legal.