Is “no jab, no job” as simple as it sounds?
The phrase “no jab, no job” has been doing the rounds of late – especially this week in medical and education circles following the government’s announcement on Monday that they are mandating vaccines for staff in those professions (although at the time of writing the details of that have not yet been updated in the relevant legislative order).
But the phrase ‘no jab, no job’ makes it seem easy for employers to terminate an employee’s role for failing to provide proof of having been vaccinated against COVID-19.
However, the recent Employment Relations Authority decision involving the customs worker who refused to get vaccinated, and lost their job (GF v New Zealand Customs Service), provides an example of the series of hoops an employer will need to go through to ensure any termination of employment based on vaccination status is justified. Proving it is not quite as simple as ‘no jab, no job.’
Firstly, employers need to carefully check the relevant COVID-19 Vaccination Order to determine if the role each employee holds falls within the categories where vaccination has been mandated by the government. If a role doesn’t fall within the categories of workers set out in the Order, employers need to do a risk assessment to determine whether the nature of an employee’s work – the role they’re performing – means the work should be performed by a vaccinated employee for health and safety purposes. The employees performing the work in question should be consulted on that assessment.
Once an employer has determined that an employee’s role does require a vaccinated employee – either due to the government Order or due to the employer’s health and safety risk assessment – the employer then needs to ask the employee for confirmation they are vaccinated. If they refuse to give such confirmation, the employer needs to go through a process of looking into whether there are any suitable redeployment options for the employee. Essentially, are there roles that don’t require a vaccinated employee that the employee could do? At the same time, the employer needs to put the employee on notice that their employment may be terminated if a suitable redeployment option cannot be identified.
It’s only at this point, once any potential redeployment options have been exhausted, that the employer can terminate an employee on health and safety grounds for failing to provide proof of vaccination status.
The process takes time, involves consultation with the impacted employee, requires both the employer and employee to be open and communicative in information sharing, and to be active and constructive in trying to maintain the employment relationship.
It’s definitely not the case of showing someone the door who choses not to get vaccinated.
If you are needing assistance with vaccine mandates for roles, or you have questions around the impact of COVID-19 and vaccinations on your workplace, either as an employer or employee, please get in touch with the Watermark team directly. We are happy to assist you.