Mandatory Vaccines: Can An Unvaccinated Worker In Healthcare Or Education Be Fired?

Following the Government’s announcement that the COVID-19 vaccine will become mandatory for many workers in the healthcare and education sectors, questions have been raised over what the legal implications are for affected businesses.

Employers are rightfully concerned, and this concern is reflected in figures from Employsure’s advice line for business owners. Vaccine-related calls surged 297% in September compared to the previous month, as small business owners continue to struggle with the rules around vaccine mandates.

As the deadline for vaccinations draws near for the healthcare and education sectors, it begs the question: Can an employee in an industry with a vaccine mandate be fired for refusing a vaccination - assuming no valid exemption applies?

“Assuming the employer has given a lawful and reasonable direction to vaccinate, and the employee’s refusal is unreasonable, whether the employer can proceed to terminate will depend on all the circumstances of the case,” said Employsure employment relations specialist Maddie McKenzie.

“When making a decision the employer must first follow a process and consult with the employee. The employer must explore whether alternatives to vaccination exist, such as if the employee can perform alternative duties safely, and if the condition is in line with Government guidelines for their industry.

“Vaccinations as a condition of employment must relate to the inherent requirements of the role. Employers could be exposed to a successful claim if they do not engage a prospective employee because they have not been vaccinated due to protected grounds such as medical or religious reasons.

“Following that, if the employee has been given a reasonable period of time to comply with the direction and a fair process has taken place, termination may likely be reasonable. This is in situations where the employee’s refusal to get vaccinated renders them incapable of performing the inherent requirements of their role.”

Employers have an obligation to take reasonably practicable steps to ensure a safe workplace, and health advice indicates vaccinations are a critical component if we are to successfully come out of this pandemic.

For industries where a mandate is not in place, an employer can only require an employee to be vaccinated against COVID-19 where this is a lawful and reasonable direction. Lawful means the direction involves no illegality and is not contrary to an employment agreement or legislation, and what is reasonable will depend on all the surrounding circumstances.

If an employer is unable to mandate vaccination in their workplace, they can consider recommending or encouraging staff to get vaccinated instead, provide them with relevant advice from the Ministry of Health and allow them to take time off during the workday if only weekday appointments are available.

To keep on the safe side, employers may need to assume a worker is unvaccinated if they do not disclose their vaccination status, and should inform that worker of this assumption. Employee management software like BrightHR’s Vacctrak feature lets employers monitor who is fully, partially, or not vaccinated against COVID-19 in the workplace, and make rostering / working arrangement changes accordingly.

“The Government has indicated mandatory vaccinations for all will not happen in New Zealand. While an immunisation program encouraging vaccination may form part of a business’ methods of controlling risks, employers must also consider other control measures to reduce the likelihood of the spread of infectious diseases in the workplace,” continued Ms McKenzie.

“Employers who take charge and make vaccines mandatory for employees where a public health order does not apply and the direction is not considered lawful and reasonable, may face legal challenges in the future. Employers must be prepared for this and weigh up alternatives to mandatory vaccinations to meet their health and safety obligations in the workplace.”

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