As the Government reveals its plans to roll out the Covid-19 vaccine to Kiwis, the public sector has set out guidelines for the sensitive issue of how to deal with those who don't want to get vaccinated

New public sector employees on the frontlines of New Zealand’s Covid-19 response could have a vaccination requirement inserted into their contracts, according to new government advice.

An employment lawyer says ‘no jab, no job’ clauses could become more common for new hires in both the public and private sectors as employers seek to secure their workplaces for a world of open borders.

New Zealand’s roll-out of vaccinations to border and MIQ workers began last month, with the Government this week revealing its longer-term plan to vaccinate the wider public.

However, there are concerns about vaccine scepticism or hesitancy amongst some New Zealanders, with public polling released by the Ministry of Health suggesting nearly a quarter of Kiwis would not take a Covid vaccine if offered.

The Public Service Commission has released Covid vaccine guidelines for the public sector workforce, outlining the approach government agencies and other departments should take in rolling out the vaccine to their own staff.

The guidance sets out “an expectation that all employees in the public service should be vaccinated”, although notes a final decision on vaccinations sits with each individual.

“In making that choice, there may be consequences for others - in order to minimise or eliminate those consequences, agencies will need to work with individual employees on their options while respecting their choice.”

As part of the expectation that all staff should be vaccinated, the commission says agencies should “consider introducing a requirement for new employees to be vaccinated into employment agreements by agreement with any relevant unions”.

Employees’ rights to “fair and reasonable” treatment [did not extend to] prospective employees, meaning employers could “get in before you have the extra obligation on you”, Scahill said.

That requirement would apply specifically to “at-risk workforces” - those who are at higher risk of contracting the virus due to the nature of their work, such as border staff or healthcare professionals.

Agencies should also ask existing staff to provide information on whether or not they have been vaccinated, while “appropriate leaders” within the public sector should be vaccinated early in the programme to act as role models.

Staff who do not receive a vaccination for any reason should be subject to a health and safety assessment to determine whether their jobs can be done safely, the document says. If not, they could be deployed to a different role within the same agency or a different organisation, or placed on paid special leave “for a reasonable time” following legal advice.

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Wellington lawyer Chris Scarrott, a senior associate with employment specialists Cullen Law, said the firm had recommended similar Covid vaccine clauses to employers approaching it for advice about how to approach the issue.

The main obstacle to employers requiring mandating vaccination was the potential that the courts could rule such a move violated employees’ rights to “fair and reasonable” treatment.

However, that was not a right that extended to prospective employees, meaning employers could “get in before you have the extra obligation on you”, Scahill said.

Employers would still need to be mindful of broader obligations under the Human Rights Act to protect freedom of religion or ethical beliefs, while the public service was also subject to the Bill of Rights Act which included the freedom to reject medical treatment “subject to justified limitations”.

Scahill said the Public Service Commission’s guidelines appeared to strongly encourage, rather than mandate, Covid vaccinations and it had an obligation to consider health and safety requirements.

However, he expected there would likely be litigation at some point between an employee and their employer, given the sizeable minority of the public which had expressed scepticism or hesitancy about the vaccine in polling.

It was important for employers to provide their staff with information about the efficacy and safety of the vaccine, and potentially information about the tactics used by those spreading misinformation.

“Vaccination is like a collective responsibility, we know that it’ll work best when as many of us as possible do it.”

NZ Council of Trade Unions president Richard Wagstaff said the union supported the vaccine rollout and wanted vaccinations to be “easily available and accessible to all working people”.

“The workplace is a crucial element of a successful vaccination strategy for New Zealand and we need to make sure that everything is in place to enable working people to get vaccinated,” Wagstaff said.

However, it was important to protect the rights of those who did not want to be vaccinated, while good communication would ensure everyone had vital information about the vaccine and its rollout.

“Vaccination is like a collective responsibility, we know that it’ll work best when as many of us as possible do it.”

Public Service Association national secretary Erin Polaczuk said her union and others had held extensive discussions with the Public Service Commission about the guidelines, and the PSA was supportive of the rollout given many of its members were on the front lines of the Covid-19 response.

“[Our members] know the risks, they feel the pressure, and they’re constantly careful both at work and on the way home to their families. Border workers want life back to normal and they’re enthusiastic about getting vaccinated to help make that happen.”

Polaczuk said workers should ideally be vaccinated at the workplace, or paid for their time if it had to happen off-site. Any redeployments of staff who did not get the vaccine needed to respect workers’ legal and contractual rights, maintain secure employment, and ensure no loss of pay while the arrangements were made.

 “Our members are keen to get vaccinated as soon as possible, but some have questions. Workplace discussions should be organised where unions, staff health and safety reps and managers can make sure everyone feels educated and empowered to get the vaccine.”

'No compulsion' - PSC

A Public Service Commission spokesman said no workers would be compelled to be vaccinated, but the guidelines strongly encouraged vaccinations due to the importance of public servants to the country’s Covid-19 response.

“It is important they are vaccinated to protect themselves, the people they work with and the people they serve.  But individuals have the right to choose, and their choice will absolutely be respected.”

However, the spokesman said agencies would need to “mitigate or manage” the consequences of employees choosing not to vaccinate, such as by moving a border worker to a back-office role.

“It's about the employer exercising careful judgment [and] each workforce is different.”

While there was an expectation that public servants would get vaccinated, agencies were encouraged to use “common sense and cooperation”, the spokesman said.