COVID-19 advice: Mandatory COVID-19 vaccinations in the workplace
13 October 2021
Technical advice is our interpretation of how professional standards apply in a particular situation. It is designed to help veterinarians deal with common issues in practice, using their professional judgement to apply the advice to their own situation. It represents our best efforts at the time of publication but standards and expectations change over time and particular care should be used when reading old advice.
Can a clinic require team members to be vaccinated against COVID-19?
Update (22 October 2021): The Government announced a new COVID-19 protection framework today that includes emphasis on checking of vaccine certificates by private businesses. We will update this guidance when more detail is available. In the meantime, we believe that the following advice is still valid and that it would be prudent for any clinic considering COVID-19 vaccination rules to carry out a health and safety risk assessment. The Government's announcement today supports the conclusion that it will be appropriate for many businesses to decide that checking for COVID-19 vaccination status should be used alongside other measures.
We consider that the issue of vaccinations in the workplace is primarily an employment and health and safety issue and we encourage people considering this issue to get independent legal advice, specific to your situation (you can search for legal help here and NZVA members can access non-legal HR advice from People3). This is not a question with a blanket yes or no answer. The following offers some guidance on how veterinary businesses might reasonably navigate this issue.
There is nothing to suggest, at this stage, that the recently announced vaccination requirements for health care workers and teachers will be extended to veterinarians. In the absence of an explicit legal requirement, the starting point for any employer considering COVID-19 vaccinations in the workplace should be a health and safety risk assessment (there's some excellent guidance on risk assessments here). Specifically, they should consider:
- The likelihood of people (team members and visitors) contracting COVID-19 while in the workplace.
- The potential consequences of a person in the workplace catching COVID-19. This includes the potential harm to people (including those who are more vulnerable for any reason) as well as things like business disruption and adverse publicity.
These two considerations combine to form an overall picture of the risk and how significant it is. Once the employer has this, they should consider all of the control measures that can be taken, including but not limited to vaccination.
If the employer decides there is a significant risk and they are not able to reduce it by implementing controls short of requiring workers to be vaccinated, they should consider, in collaboration with their employees, whether the work should be performed by a vaccinated employee (noting that the risk may be different for different roles in the same clinic).
If an employer decides that it is necessary to make it mandatory for workers to be vaccinated, they must adopt a fair and reasonable process for implementing the decision. This will include discussing the issue with employees, in good faith.
Any practice considering taking this step should get legal advice.
If an employee refuses to be vaccinated, or refuses to confirm whether they are vaccinated, the employer must consider all of the options available, including things like redeployment and changing duties, before considering ending the employment agreement and they must follow a fair, reasonable and good faith process. More information can be found in this high quality resource provided by Employment New Zealand.
What about clients and visitors?
As with the situation for employees, a business could decide, following a risk assessment, that it is necessary to require people visiting the premises to be vaccinated. A separate risk assessment would be needed because the risks are different, particularly if all employees are vaccinated and in the absence of robust evidence on fomite based transmission.
There is a significant amount of uncertainty in this area and veterinary businesses should proceed with caution, and get advice, if considering requiring visitors to show proof of vaccination. While most practices are private businesses and can set their own conditions of entry, it is possible that requiring proof of vaccination may breach the anti-discrimination provisions of the Human Rights Act.
A practice considering requiring visitors to be vaccinated would also have to think about how vaccination status could be established. It isn’t yet clear what the law will be around permissible use of vaccination certificates when they are rolled out later this year. At this stage, the certificate system appears to be aimed mainly at large gatherings and it seems unlikely that veterinary clinics or other veterinary businesses will be specifically covered. It also isn’t clear whether private businesses will be prohibited from asking for certificates as proof of vaccination status.