Employees can't be forced into Covid-19 vaccination, but some 'rare' occasions may require it, says barrister

February 4, 2021

Solicitor Graeme Edgeler says there may be some “rare” circumstances that employees won’t be hired unless they’re vaccinated.

A Wellington barrister says it's unlikely employees who refuse to take a Covid vaccine can be legally fired, but employers could refuse to hire non-vaccinated candidates in some circumstances.

The government yesterday announced that MedSafe has given preliminary approval for the Pfizer vaccine to be used in New Zealand, and the country is now waiting for doses to arrive.

"Subject to expected delivery of the first batch of the vaccine," Prime Minister Jacinda Ardern said, "we will start vaccinating first our border workers and the people they live with.

"Once vaccination of our border workers starts, we expect it to be completed within two to three weeks."

But lawyer, Graeme Edgeler said no one can be forced into taking a vaccine if they don't want to - even border workers and medical staff.

"You could potentially make something compulsory if it was necessary - but as we've largely seen over the last 6-9 months with people in MIQ and hospitals and places like that, if you take other steps - wearing personal protective equipment, social distancing, washing your hands and things like that - you can avoid getting the illness," Edgeler said.

"So if you can avoid getting infected in another way, it's probably unreasonable for someone to insist you do it in this way."

He also said it would be difficult for employers to justify dismissing workers if they refuse to take a vaccine, but less difficult for them to justify not hiring a worker for a role where they could potentially be exposed to the virus.

Edgeler also said people who are vaccinated could simply receive benefits that un-vaccinated people don't - like avoiding the need for managed isolation or quarantine after arriving in another country.

Airline crews, for example might be shifted into roles where they are less inclined to be exposed, like domestic routes instead of international.

However, Edgeler said positions that would absolutely - and justifiably - require a vaccinated employee would be rare.

"It will not be most employers, even people dealing with vulnerable people or in particular areas, but there could well be particular, narrow sets of circumstances where it could be something reasonable for an employer to ask."

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