With the pandemic feeling more real than ever, many business owners are wondering what they can do to keep their employees and businesses safe. Getting vaccinated is one of the best ways to do this – but what if your staff refuse or can’t get vaccinated?
We’re starting to get a lot of questions about vaccination and requests for assistance with risk assessments and consultations, so it’s timely to answer a few FAQs:
When can you require an employee to be vaccinated?
You cannot force an employee to get vaccinated, but you can require certain roles to be performed by employees who are vaccinated. Roles may require a vaccinated employee where the work is covered by a Health Order, or if a risk assessment shows there is a high risk of getting and/or infecting others with COVID-19.
A risk assessment requires consideration of two key factors:
To date, only a small percentage of roles in New Zealand could reasonably require vaccination, but with the Dellta variant now active in the community, this may be changing.
How do you change a role to require vaccination?
If you have conducted a risk assessment and consider vaccination necessary for a particular role, you need to consult with your employees and their union (if any). Consultation means telling your staff what you are proposing to do and showing them your risk assessment.
It’s also important to tell staff the potential outcome of the process from the outset – i.e. if you decide to go ahead and require the role to be performed by a vaccinated person, any staff member who is not vaccinated (and has no intention to become vaccinated) may be made redundant if another suitable role cannot be found for them within the organisation.
Most importantly, consultation means getting feedback from your staff before making any final decisions.
If, after consultation, all your staff agree the role(s) should require vaccination, it’s easy and you just go ahead with the changes. If some staff have concerns, you should re-visit your risk assessment in light of their feedback before making your decision as to what to do.
When should you consult with staff about a role change?
If your risk assessment shows the risk will likely become high enough to justify the change if a certain event occurs (e.g. a confirmed case of covid-19 in your Region or your business being named as a place of interest), you can get ahead of the game by consulting with your staff to get their feedback on your assessment/the proposed event(s) that would trigger the change to require certain roles to be performed by vaccinated employees.
What if an employee isn’t vaccinated, despite their role requiring it?
If you have gone through a consultation process and decided a particular role needs to be performed by a vaccinated employee, you must be fair and reasonable in your response to any employee who will not/cannot get vaccinated.
If you get to the stage where you are considering making an employee redundant for not getting vaccinated, re-visit that risk assessment again and get some legal advice. Before making any employee redundant, you must explore workable alternatives, such as changing the employee’s work location, hours of work, the duties of the employee, or transferring the employee into a position with less risk– if a lawful process is not followed, the employee may raise a personal grievance for unjustified dismissal, which could cost you and your businesses a lot of time and money!
Wakefields Lawyers are your legal experts and we’re here to help your business navigate the pandemic and its impact on your business and employees. Contact us today:
Employment Law – Amy Webster
Phone: 021 751 263
Corporate & Commercial Law – Betsyn McHardy
Phone: 021 247 5004