COVID-19 Vaccine: Employer Obligations

Recognising the critical role that our border workforce play in keeping us safe, you will have seen that the government has announced that the Ministry of Health will be rolling out the COVID-19 vaccine to border workers and their families from this weekend. The question that some (border workforce) employers are pondering – understandably – is whether they can and should direct workers to get vaccinated. Related to this, what’s the risk of a worker who is not vaccinated doing their job? Could there be valid exceptions to any such direction based on a worker’s individual circumstances?

These are going to be fair questions for many (non-border) employers as the vaccine is more widely rolled out in, we understand, the second half of 2021. The suggestion has been made that government may intervene on the issue, but it could take the view that our laws already provide for this conundrum (they do) and that the determinative factors will be drawn from the circumstances of the particular work and workplace in each case. It’s a vexed question because the importance of operating as safely as possible in the current COVID-19 environment is obvious, but at the same time employees have a number of individual statutory rights (including the right not to be discriminated against nor unjustifiably dismissed) which the courts (rightly) recognise as fundamental “stand-alone” protections.

We discuss below the relevant considerations for an employer in balancing these potentially competing interests.

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