No Jab, No Job

No Jab, No Job

“No jab, no job” is the new catchphrase. Considering whether to require employees to be vaccinated is a topical and difficult subject. Max Whitehead is known nationwide as a leading employment law expert, often quoted in the media and a reputable guy. FixHR recently participated in a seminar he spoke at regarding the vaccination position. Here are some significant takeaways from that event:

Legislation

Don’t feel constrained by the Bill of Rights Act, Employment Relations Act, Human Rights Act, etc. The most important piece of legislation in this area is now regarded as the Health and Safety at Work Act. It trumps each of the other pieces of law. Therefore an employer’s primary responsibility and obligation is to eliminate, or where that is not possible to minimise, health and safety risks for their staff.

Case Law

In a recent border worker case, the ERA found in favour of an employer who had dismissed an unvaccinated employee. This finding demonstrates that if a business follows a robust process with plenty of communication, it is fair and reasonable to exit an employee who remains unvaccinated if that person poses a risk to the workplace.

Reducing the risk of a grievance

Any time an employer challenges the employment of their staff they run the risk of a grievance being lodged against them. However, if you incorporate the following into your process, you reduce the chance that you would lose such a claim:

• Develop a specific policy about COVID and vaccinations in your workplace. Engage with your staff in the process if at all feasible.
• Run a health and safety assessment on each role in your business to establish the level of risk each one inherently poses. Again, get input from your staff where possible.
• Consult with your people. Discuss the implications and get their thoughts.
• Make sure you create a separate folder to capture your process, consultation, support obtained etc. If there is ever a challenge this folder will make life much easier.
• The key is to engage in lots of open communication, even though this is a contentious topic for many. This should reduce the chances of anything backfiring and will also position you well in the unwelcome event of a claim.

Contact us if you have any specific questions. This is still very much uncharted territory. We are all waiting for clarity from the Government and/or higher level judicial clarification to define more specifically our obligations as employers.