Employment lawyer weighs in on what the move means for employers and contractors
New Zealand’s leader Jacinda Ardern has confirmed all MIQ workers must be vaccinated after last week’s fresh COVID-19 case linked to a hotel quarantine facility.
The prime minister has said those in frontline roles will need to have the jab by the end of April, otherwise they will be redeployed. Around 86% of workers have already been vaccinated, after the government began its frontline roll-out in February.
But last week, a security worker at an MIQ hotel tested positive after missing two vaccine appointments. The case prompted Ardern to take a firm stance on the issue.
Speaking after a cabinet meeting on Monday, Ardern said: “The bar is very high, there is essentially no reason that we consider acceptable [to not be vaccinated and remain working in MIQ], because it is a facility where individuals are at risk, we feel an obligation to make sure they are looked after.
"On March 23, efforts were stepped up requiring employers to have individual conversations with their workers, to record and identify their vaccination status, and provide support for those not yet vaccinated. By the end of April, those not yet vaccinated will not be permitted to work in high-risk workplaces and will be moved to other roles."
The issue of mandatory vaccinations has been a hot topic for employers ever since the roll-out began, but so far companies and organisations have been treading lightly. Employers can make a directive such as a mandatory vaccination, but it must be lawful and reasonable to avoid an unfair dismissal claim – and that is where employers could fall short of the law.
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Speaking to HRD, James Warren, partner at Dentons Kensington Swan, said the requirement for all MIQ workers to be vaccinated could set off a trend for contractors in future. As it’s unlikely the government is employing the MIQ workers directly, the responsibility to ensure all staff have been vaccinated will lie with the employer.
“There's quite a lot of sensitivity around this issue because employers can't just go ahead and make the decision that they will not use someone who is unvaccinated or to require somebody to be vaccinated and then to remove them from the job if they don't comply,” Warren said. “That's not something which most employers would be able to justify lawfully.”
Because the government is contracting the service, it could do so on the condition of all the company’s workers being vaccinated. If the company is unable to show that has been achieved, through vaccine documentation for example, the government could withdraw its business and find another contractor which could meet the vaccination requirement.
“The responsibility upon the employer in that situation is to check very carefully with the client, whether there's any way you can change the requirement or what the scope of it is. Once they know the situation and can’t push it any further, it’s likely they’ll be stuck with it,” Warren said.
If the option of redeploying those staff members to another role is not available, businesses could be faced with employees who cannot work.
“If they employer has tried everything they can to avoid that dismissal, most likely it would then be a reasonable position to dismiss them,” Warren added.
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Legally, there is little an employer can do to force an employee to be vaccinated. It would have to show that other alternatives, like PPE and social distancing, are ineffective. For those working on a COVID-19 ward who come into regular contact with patients, Warren said a mandatory vaccination policy could be justified. But the risk of coming into contact with infected people is likely to be far lower for MIQ workers.
It poses real questions as to whether this situation will become the norm within contractual relationships. Its commonplace for cleaning companies, health and social care workers to be contracted for work through an agency. If they refuse to be vaccinated and cannot work for certain clients, they may find themselves out of a job.
Warren says mandatory vaccination legislation is unlikely to adopted by the government. He also believes employers in most sectors will struggle to lawfully justify the requirement for staff to be vaccinated, unless they work in very high-risk industries like health or aged care. But if this requirement on contractors takes off, it could essentially pose a back-door route for persuading people to be vaccinated. In essence, contracted workers may be faced with the reality of no jab, no job.
