Some large companies have begun to issue vaccine mandates. Others are wary without a government directive. We ask employers what they’re planning, and a specialist lawyer explains what businesses can and can’t do.
Law firm Russell McVeagh was the first big player last week to announce that it will require all staff, clients and visitors to be vaccinated before visiting its offices. As businesses across Aotearoa puzzled over their options in a post-elimination future, that set a stake in the ground. A similar announcement from business services giant PWC soon followed.
Employees of both companies were assured that they wouldn’t be out of a job if they remained unvaccinated, and could continue to work remotely.
As the demands from many business leaders for a vaccine mandate via government edict remain unanswered, employers are attempting to navigate their staff’s wishes, unions, government advice and the law to create strategies that protect everyone, from both a health and safety and legal perspective.
A survey of 115 CEOs at large to medium businesses found that close to half are planning to mandate vaccines. Almost a third said they plan to restrict access to their worksites for non-vaccinated contractors. More told the Business Leaders Health & Safety Forum survey they would mandate if there was “clearer direction and support from the government”.
The challenges, of course, are greater for some workplaces than others. While face-to-face meetings are valuable for building client trust and relationships, in-person engagement isn’t as essential for professional services as it is in say, building or banking industries.
The Spinoff asked some of New Zealand’s bigger employers how they were approaching the question of vaccine mandates.
Countdown, Vodafone, Fonterra, KPMG, Fletcher Building, Kiwibank, BNZ and ANZ were among those who said that they were not at this point planning to mandate vaccination. Instead they are encouraging staff to get vaccinated and removing barriers to vaccination. Fletcher Building said they were providing paid leave for people to get vaccinations, as well as working with DHBs to get vaccination buses to worksites. Vodafone is providing incentives in the form of account credit and prize draws. KPMG had offered rewards such as leave for meeting vaccination targets, while Kiwibank, ANZ and PWC had granted additional leave for people to receive vaccinations.
Ernst & Young, Bell Gully and KPMG indicated they were still waiting on the results of staff-wide surveys to inform their strategy. Ernst & Young has put a proposal to staff that, like PWC and Russell McVeagh, they be required to be vaccinated to access their offices, with an alternate proposal that any unvaccinated visitors provide a negative Covid-19 test. Vodafone, ANZ and Air NZ had hosted Q&A sessions with experts such as Siouxsie Wiles.
Spark NZ are nearing completion of a health and safety risk assessment ahead of making any decision, and are currently exploring opportunities to introduce rapid antigen testing for essential services teams.
MediaWorks, which runs radio and outdoor advertising operations, this week announced a sweeping mandate, which will require any staff, visitors or on-air guests on premises if they are fully vaccinated.
At the beginning of the month Air NZ announced that crew and customers must be vaccinated to fly internationally, effective from February 2022. Chief executive Greg Foran told The Spinoff that while 91% of their frontline staff have had their first dose of the vaccine, they’re in the process of broadening their vaccine mandate to cover all employees who physically interact with customers or their baggage, or who need to come to work when public health measures such as lockdowns are in place. “This includes those who work in areas such as: airports, cabin crew, pilots, supply chain, cargo, hangar engineers, and some of our operations and infrastructure staff.”
It seems there’s no one-size-fits-all strategy.
What the law says
Laura Scampion is the head of employment law and a partner at DLA Piper, having worked in employment, and health and safety law here and in the UK. She recently co-wrote a guide for developing vaccine policies and addressed the Law Society on how to answer some of the frequently asked questions surrounding vaccine mandates for businesses. Here she answers some of those burning questions.
Who does the government say must be vaccinated?
The first vaccinations order came into force at 11.59pm on April 30 requiring that all work in MIQ settings must be undertaken by people who have been vaccinated against Covid-19.
An amendment to that order was announced last week, which added two more workforces. Certain high-risk roles in the health and disability sector need to be fully vaccinated by December 1 2021. This covers both regulated and non-regulated healthcare work, including aged residential care, home and community support services, Māori and Pacific health providers and non-government health services. Secondly, all education staff that have contact with children and students, including teachers and ECE educators, will need to have their first dose of the vaccine by November 15, and their second by January 1 2022.
When can an employer outside of those industries mandate that its employees must be vaccinated?
Before an employer can introduce a policy to mandate that particular roles must be performed by an employee who is vaccinated, a health and safety assessment needs to be done. This needs to assess whether the employee is at risk of contracting or transmitting Covid-19.
There is no health and safety case law for this yet but Worksafe have provided some questions that employers should be asking in their risk assessment.
- How many people does the employee come into contact with?
- How easy will it be to identify the people they come in contact with?
- How close is the employee in proximity to others?
- How long does the work require being in close proximity to others?
- Does the employee interact with high-risk people?
- What is the risk in the work environment compared with outside the work environment?
- Will the work continue to involve regular interaction with unknown people if the region is at a higher alert level?
Employers should add any other questions that apply to that specific role. Then they should look at what other controls could mitigate the risks presented, other than vaccination, such as working remotely, social distancing, barriers to separate employees and customers and improved hygiene standards.
The third step is assessing all of the above, and deciding if a vaccination mandate is still necessary.
Can an employer ask if an employee is vaccinated?
Yes, they can ask the question. Many employers have already sent surveys out to staff to ask exactly that. However, employees don’t have to disclose or prove to their employer that they’ve been vaccinated. If an employee chooses not to disclose their vaccination status, the employer can reasonably assume the answer is no but they should inform the employee of that assumption.
Is it OK to ask a candidate if they’re vaccinated during a job interview?
The guidance says employers can ask if a candidate is vaccinated if it’s justified by the requirements of the role. If the employer decides, judging by the risk assessment covered above, that the work cannot be performed by an unvaccinated worker, it’s reasonable to ask about the applicant’s vaccination status. That information then needs to be handled in accordance with the Privacy Act.
Can an employer tell prospective employees if they want the job, they have to be vaccinated?
Employers can require vaccination as a term of new employment. However, it still has to be reasonable for the role and can’t be unlawful discrimination under the Human Rights Act.
What are the options for employees who are worried about unvaccinated co-workers?
Under the Health and Safety At Work Act, workers have the right to stop work or refuse to carry out work if they believe that doing the work will expose them or others to a serious health and safety risk. However, unless vaccination is needed for health and safety reasons (per the risk assessment above) work is unlikely to be deemed unsafe solely because it’s done around unvaccinated people.
Employers are just as likely as anyone else to hold beliefs that are not supported by scientific evidence. What are an employee’s options if the initial risk assessment has not been performed in good faith?
As above, an employee can stop work if they believe that doing the work would expose them, or anyone else, to a serious risk to health or safety. So, if no precautions are being taken (say no social distancing and no adequate hygiene standards) then an employee can arguably stop work or refuse to come to the premises. In saying, that if the employer has carried out a robust health and safety assessment and believes that it is adequately minimising hazard or risk then it will be difficult for the employee to assert the workplace is unsafe.
Can sharing vaccine misinformation in the workplace amount to misconduct?
Many individual employee contracts and workplace policies contain definitions of misconduct, such as endangering health and safety or bringing an employer into disrepute. The individual’s contract, the information that is shared, how and who with are relevant factors. Someone sharing their opinion across a desk with a fellow colleague is unlikely to meet that threshold. At the extreme end – advice that threatens the health and safety of a large number of employees and violates a contract – can arguably be construed as misconduct, but the circumstances would be rare.
What does the Bill of Rights say?
Under the New Zealand Bill of Rights, vaccinations are considered a medical treatment and therefore require informed consent. In relation to employer vaccine mandates, we’re talking about requiring a vaccination for the performance of a role rather than forcing that “medical treatment”. The employer needs to ask: if an employee is not vaccinated, can we accommodate this or does it does it genuinely create a health and safety risk?
What are small businesses supposed to do?
Small businesses can also follow the advice above. However, in more intimate teams, there is usually more of a personal relationship between employers and employees that requires more dialogue.
International employee experience expert Shane Green, who recently returned to New Zealand from the US, has provided culture and business performance advice to the NBA, BMW, United Airlines, Footlocker and more.
He says a respected employer is often seen as a more reliable and trusted source of information about Covid-19 than politicians, media and influencers, and with that trust comes the responsibility to have “empathetic conversations about vaccination that demonstrate respect for each employee” while understanding the vaccination requirements for that worksite.
After assessing whether certain roles are high risk, the next step is to determine the benefits of encouraging voluntary vaccination. He recommends maintaining a consistent approach based on some key points. “Employers need to act in good faith. Any request of employees to be vaccinated requires open and honest communication,” he says.
“It is important to be empathetic. For some people, the decision to get vaccinated is not easy because of personal beliefs or disposition. That is why an early assurance that individual positions on vaccination are recognised and acknowledged is vital. Managers need to reinforce that the conversation is not about requiring people to get vaccinated – it is about protecting each other and adhering to workplace values.”
Green advises striving to keep discussions objective instead of subjective; avoiding making the conversation about a personal position or ideal and instead focus on a company decision based on the facts that has been made to protect others in the team, employees’ whānau, customers and the wider community.
“Employers need to connect their position on the vaccine to their workplace values. Values define how people should act, interact, and make decisions.”