COVID-19: Legal action likely over vaccination rules - lawyer

Prime Minister Jacinda Ardern said on Monday if they don't get vaccinated in the next three weeks, they will be "moved from the front line".
Prime Minister Jacinda Ardern said on Monday if they don't get vaccinated in the next three weeks, they will be "moved from the front line". Photo credit: Getty

An employment lawyer is predicting there will be legal action over COVID-19 vaccination requirements for frontline workers.

Prime Minister Jacinda Ardern said on Monday if they don't get vaccinated in the next three weeks, they will be "moved from the front line".

But it is not clear what that means - where workers will be redeployed to, or whether there are comparable roles available.

"I would say that that responsibility lies with the company," employment lawyer Bridget Smith told Checkpoint.

"And unless the government makes it mandatory for the company to take particular action, then the company will just be left in a situation where it is trying its best to comply with the government's directions," Smith said.

"I have found it interesting over the last couple of days the prime minister seems to be referring euphemistically to those employees being moved on," she said.

"I say euphemistically because it's not clear what 'moved on' means. Does it mean moved on to another role? Or does it mean moved on out of employment? For a contract, you have slightly different rights to terminate a contract, depending on what that contract provides.

"For an employee you have the rights and protections of employees. And arguably, the obligation for employees is going to be to redeploy, but then that raises the question, do these organisations have other roles that unvaccinated people can perform or not?"

She said there was potential that the mandatory vaccination rule for border workers may mean people lose their jobs.

"Particularly I think, in the case of contracted workers, where someone isn't vaccinated and the company simply says: 'We're terminating your contract'.

"It will come down to the termination provisions of that contract. But if the company has the right to terminate on notice, then that's what they will do. And that's why there's always this tension between whether people are employees or contractors, in terms of having the rights and protections of employees."

There was also the potential for workers who get terminated for not being vaccinated to argue they have been discriminated against, but Smith said that depended on their reasons for not getting the COVID-19 vaccine.

"On the MBIE employment New Zealand website, it very clearly states employers cannot require an individual to be vaccinated. But they can require a specific role be performed by a vaccinated person.

"The other point is that employees shouldn't be unfairly disadvantaged. So I would be saying: 'If an employee is being moved in those circumstances, they should still have the same hours of work and rate of pay."

Smith said one important question people were asking was why making vaccination appointments available was still an issue, given the vaccine had been in New Zealand since February.

"I understand the vaccine has been readily available for [border workers]. So it has presumably some sort of ethical objection to obtaining the vaccine. In which case, generally no amount of time is going to make a difference."

Neither of the two security guards who caught the virus while working at an isolation hotel in April had been vaccinated.

Director-General of Health Ashley Bloomfield has indicated that was because of logistics rather than ideological reasons.

The government has now issued a directive that workers in MIQ or at the border, who have not had the jab by 30 April, will be redeployed.

"I think the individuals in question they need to be asked, is this a timing issue? Is this an availability issue? Or are you simply fundamentally opposed to being vaccinated?" Smith said.

"And if it is the latter, then the time doesn't make a difference. And actually alternative arrangements need to be made.

"Under the Health and Safety at Work Act, employers owe an obligation to take all reasonably practicable steps to keep these employees and their colleagues and members of the public safe."

Those steps might include assessing PPE availability, the extent to which a border worker comes into contact with people coming from overseas, and if there are alternative roles available.

Smith anticipated a case around vaccination and employment right would end up in court.

"The reason I think there is wriggle room is because it's not as simple as 'no jab, no job'.

"An employer cannot require someone to be vaccinated - an existing employee or contractor. So there has to be a process or a mechanism for dealing with those people who are in existing roles."

A 'no jab, no job' rule would only be possible if the government ordered it, she said.

"For example, certainly in aged care or care for early childhood, where you're working with people who are either at high risk or unable to be vaccinated themselves - that would appear to be reasonable."