(Image: Tina Tiller)
(Image: Tina Tiller)

BusinessOctober 27, 2021

What happens if your boss refuses to get vaccinated?

(Image: Tina Tiller)
(Image: Tina Tiller)

This week, the government announced that Covid-19 vaccinations will be compulsory for workers as well as customers at businesses using vaccine certificates. But what happens if the owner of the business won’t get on board?

Hospitality worker Mary* is in her 50s and has been working at her current job at a popular restaurant in a wealthy suburb in Auckland for the last five years.

At the start of the current Auckland outbreak, it became clear that her employer, along with three other staff, were not planning to get vaccinated. They’re staunchly against vaccines, and they remain unswayed, she says.

As with many small hospitality businesses, Mary’s boss works in close proximity to both staff and customers – working front of house, in the kitchen and making deliveries.

“Generally, as a hospitality business, an owner has a responsibility to keep workers and customers safe,” Mary says. “I am concerned that I won’t be able to work in a safe workplace.”

Masks are worn on site, but, as is the case with most restaurant and cafe venues, distancing is often difficult for staff, particularly in the tiny kitchen. Mary says the ventilation system in the restaurant is inadequate too. 

In a Spinoff article published today, Emma Vitz analysed data to show that compared to other jobs, restaurant and cafe managers have the highest risk factors for Covid-19 transmission, which include working indoors, in close physical proximity, face to face and with external customers. Other hospitality roles like waiter and chef ranked highly across the four risk factors too.

“Choosing to be vaccinated is a personal issue when you are not involved with other people in any way,” says Mary, adding that “in all other situations, especially in a hospitality business, public and worker safety must override personal choice”.

The government announcement yesterday means that the vaccine will be compulsory for all workers at businesses where customers need to show a vaccine certificate for entry. That includes public-facing establishments like restaurants, cafes and bars along with gyms, hairdressers, barbers and events. 

A press release from Michael Wood, the minister for workplace relations and safety, explained that the decision was made “to make those workplaces as safe as possible and give confidence to staff and customers”. The announcement came after “calls from both businesses and unions to make this process as clear as possible”. 

The vaccine will be compulsory for all workers at businesses where customers need to show a vaccine certificate for entry (Photo: Phil Walter/Getty Images)

The new rules give customers at establishments using vaccine passports added certainty that both the staff serving them and those dining at surrounding tables have had their jabs. 

Under the new traffic light Covid protection framework, which could be rolled out before the end of the year, businesses using vaccine certificates will have greater freedoms. At the orange level, hospitality businesses using certificates will operate pretty much as normal, but businesses that do not use them will have to be contactless.

At the lowest level of the new system, “green”, hospitality businesses that don’t use vaccine certificates can host only up to 100 people, who must be both seated and separated. Businesses that do use them will be free to run without restrictions. 

And although the latest announcement didn’t specifically mention employer vaccination status, it seems clear that if an employer is on site, interacting with staff and customers, they too will need to be vaccinated to benefit from the scheme. However, while the advice did give employers clarity around ensuring staff are fully vaccinated, there was nothing on when the tables are turned and someone’s boss is refusing the vaccine.

This means there are still unanswered questions for some workers when it comes to navigating these issues.

Mary doesn’t believe the benefits of operating under the passport system will encourage her employer to change their mind. “There are no guidelines for workers in the situation that the owner or manager themselves aren’t vaccinated,” she says.

She says if her employer remains unvaccinated, both she and other staff (including some whose visas rely on their employment at the restaurant) will likely have to find new jobs. 

Chloe Ann-King, who runs hospitality union Raise the Bar, says she’d like to see official guidance from the government outlining steps workers can take if their boss refuses to be vaccinated. While the new system will be a relief for many workers, employees and customers alike, the risk remains for workers like Mary, who work for business owners refusing the vaccine, and potentially forgoing the vaccination passport system.

“The reality is the focus has been on helping and supporting employers, especially in the hospitality industry,” says Ann-King.

She says Section 83 of the Health and Safety Workplace Act could provide guidance to workers put in this position. The section states: “A worker may cease, or refuse to carry out, work if the worker believes that carrying out the work would expose the worker, or any other person, to a serious risk to the worker’s or other person’s health or safety arising from an immediate or imminent exposure to a hazard.”

While she stresses there’s no case law yet, she believes a worker would have grounds to decline to work for an unvaccinated employer. She says this is especially true in a hospitality sector workplace, where you’re “working in such close proximity to other staff”.

Although the introduction of the vaccine certificate system has been received mostly positively across the sector, questions have been raised about how it will be managed. What kind of added pressure will it put on staff? Will business owners need to hire additional workers to manage the system? How will workers be protected from potential backlash from disgruntled customers? Who will ensure the rules are being abided by?

While it remains unclear exactly how the system will be enforced, Ann-King believes it would be a good start to make sure that owners themselves who are benefitting from the scheme are vaccinated.

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