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Three key issues when considering Covid-19 workplace vaccine mandates
With the Government’s push for all eligible New Zealanders to be vaccinated against Covid-19, employers are understandably grappling with the question of what responsibility they have to encourage or require Covid-19 vaccination in their employees.
There has been considerable legal and media attention on whether employers can mandate Covid-19 vaccinations for existing staff or have vaccination (or vaccine willingness) as a prerequisite for new employees.
The Government has issued an order that legally obliges certain workers to be vaccinated. Although the lawfulness of that order has been challenged, so far, the courts have confirmed its legality. There can be little doubt that, as matters stand, if an employee is in a role covered by the order then they must be vaccinated in order to do their job.
What is currently more tricky for employers to deal with is what this means for employees not covered by the order.
There are three key issues not being widely discussed which are important in determining the appropriateness of employer-imposed vaccine mandates:
- The central importance of the efficacy of Covid-19 vaccines in preventing transmission of the virus
- The relevance of the Government’s vaccine order to an employer’s Covid-19 risk assessment
- The potential scope of a discrimination claim on the basis of vaccine status
Each of these are addressed below.
Prevention of transmission
Employers must keep in mind what the purpose of the vaccine is in terms of preventing the risk of Covid-19 in the workplace. This boils down to the prevention of transmission of Covid-19. The other known benefit of the vaccine is the reduction in the seriousness of symptoms for the individual who contracts the virus. However, it is the ability of the vaccine to reduce the transmission of the virus between workers that should be an employer’s primary focus when considering a vaccine mandate.
In short, if the vaccine does not materially reduce the transmissibility of Covid-19 in the vaccinated, then it will be difficult to justify a mandate as a health and safety measure.
Given its significance to any potential vaccine mandate, this point will need to be an essential consideration of any risk assessment an employer undertakes. Accordingly, the author of any such risk assessment report will need the relevant scientific expertise to provide an employer with an up-to-date assessment of the effectiveness of the vaccine in reducing transmission.
In the recent High Court judgment of GF v Minister of Covid-19 Response the Government position was that there is growing scientific evidence and consensus that the vaccine is effective in reducing the rate of transmission of Covid-19. This was the position that was essentially adopted by the Court. However, this evidence appears to have been uncontested by the applicant, so caution is warranted before relying on this judgment to support the position that the vaccine substantially reduces transmission of the virus.
By contrast, for example, the Centre of Disease Control in the United States has recently published two studies showing significant outbreaks of the Delta variant in highly vaccinated populations[1], indicating that the vaccines do not significantly reduce transmission of the virus.
The other point to make in this respect is that if it is correct that the vaccine substantially reduces (or even eliminates) transmission, then this is potentially reason in itself not to mandate the vaccine – particularly if an employer’s workforce is largely vaccinated. In other words, if the vaccine prevents transmission then the vaccinated are effectively protected against any unvaccinated co-workers. That is to say, an unvaccinated employee does not present a material risk of infection to the vaccinated.
While we are not experts on whether the vaccine sufficiently reduces transmission of Covid-19, the important takeaway is that this issue must be a key focus for any consideration of an employer-imposed vaccine mandate. An employer must make an assessment of the risks based on credible and reliable information.
Relevance of Government’s mandate and Covid-19 to employer risk assessments
The Government’s vaccine mandate is an unprecedented step in constraining the scope of the otherwise private employment relationship. Clearly this order is of significant importance to employers who employ workers in roles that are captured by the order. However, the order is also key for employers unaffected directly by the order, but who are considering imposing a vaccine mandate.
The reason the order has a broader significance is because it effectively represents the Government’s considered view as to where the line is to be drawn in terms of those jobs which represent a significant risk of transmission of Covid-19. This fact is stated explicitly in the purpose of the vaccination order which reads: ‘the purpose of this order is to prevent, and limit the risk of, the outbreak or spread of COVID-19 by requiring certain work to be carried out by affected persons who are vaccinated.’
Put simply, an employee faced with a vaccine mandate by their employer might quite justifiably turn around and say: “If my job really does carry a significant risk of transmission of Covid-19, then wouldn’t the Government have included it within the order?” This is not to say an employer is precluded from introducing a mandate outside of the order. However, while New Zealand’s borders remain more or less closed, and the order is in place, any employer proposing the imposition of a mandate should be prepared to justify why a job not covered by the order (and therefore outside of the Government’s defined areas of particular risk) requires a vaccinated worker to fill it.
Vaccine mandate and the scope of discrimination
The most significant risk an employer faces in requiring vaccination (or vaccine willingness) for new employees, is that in doing so they may be unlawfully discriminating against potential employees who are not or unwilling to be vaccinated.
Determining whether or not unlawful discrimination has occurred is a two-step process. First the discrimination must be identified. Discrimination occurs where there is different treatment on a prohibited ground between persons or groups in comparable circumstances. This different treatment must also lead to material disadvantage (exclusion from consideration for employment would be considered a material disadvantage). The second step is establishing that the discrimination in question was not justified in the circumstances.
The Human Rights Act sets out a number of prohibited grounds of discrimination. The list is exhaustive, so any treatment questioned, needs to come within one of the defined categories. Of potential relevance to requiring new employees to be vaccinated are the prohibited discrimination grounds of pregnancy, disability (which covers existing physical or mental conditions, illnesses or impairments and the presence of certain organisms capable of causing illness) and religious beliefs.
Much of the discussion we have seen concerning the risk of unlawful discrimination has focussed on the possibility that, for example, a prospective employee may not be vaccinated for a particular medical reason, such as a previous adverse reaction. However, there has been comparatively little discussion of whether treating prospective employees differently based on their vaccine status might also fall within a prohibited ground of discrimination.
While the definition of ‘disability’ in the Human Rights Act is wide, vaccination status does not obviously fit within one of the definitions of disability. However, a court adopting a purposive approach to interpretation could accord a generous scope to the definition of disability. It must be remembered that the Human Rights Act was designed, at least in part, to give effect to New Zealand’s international obligations, for example as a signatory to the International Covenant on Civil & Political Rights (ICCPR). It is from the ICCPR that that right to be free from discrimination derives, and the right as it is set out in the Covenant protects against discrimination on the basis of any status. In short, if challenged, it is open to the Human Rights Review Tribunal, or other court, to conclude that discrimination because of vaccination status alone amounts to differential treatment on the basis of a prohibited ground of discrimination.
In conclusion, for discrimination to be unlawful, the differential treatment must also be an unjustified limitation on the right to be free from discrimination. Consideration of this issue is likely to circle back on the two matters we have discussed above – the efficacy of the vaccine in preventing transmission of the virus, and the fact the Government’s vaccine order would appear at present to have demarcated the line of acceptable risk in terms of the spread of Covid-19 amongst workers.
Covid has thrown up many complicated issues and when it comes to vaccinations in the workplace, it is by no means a straightforward legal or factual analysis. We recommend employers seek tailored legal advice before considering a vaccine mandate.
Haigh Lyon can advise employers about their rights, responsibilities, and issues when considering mandating vaccinations for employees.
Contact Ben Molloy on 09 306 0605 or [email protected]
[1] https://www.cdc.gov/mmwr/volumes/70/wr/mm7038e3.htm; https://www.cdc.gov/mmwr/volumes/70/wr/mm7031e2.htm