The Employment Relations Authority has upheld Customs NZ’s decision to dismiss an employee who refused to be vaccinated. In a decision released on Monday, the Authority determined that the health and safety risks associated with the employee’s border protection role justified a requirement to be vaccinated against COVID-19.

The decision focused on Customs NZ’s policy prior to the public health order which mandated vaccination for border workers, signaling that employers not covered by the order may also be able to require employees to vaccinate.

However, the case also confirms the necessity for a thorough and objective assessment of the health and safety risk posed by COVID-19 to particular employee roles. The foundation for Customs NZ’s success was a recognition that the relevant role fell within a high-risk category.

It was crucial too that its decision to dismiss was reached only after a sustained and careful consultation, followed by a formal termination process. An associated distinguishing feature of this case was the employee’s failure to offer any health or other personal reason for the refusal to vaccinate.

What does this mean?

On a preliminary basis this case confirms that employers can require COVID-19 vaccinations for certain high-risk employee roles, and take formal action against employees who refuse. But it also illustrates the narrow circumstances and extensive efforts demanded for this to be legally justified.

As many businesses rush to implement vaccination policies, we consider this case is shining a very definite amber light. Care and caution is advised.

For more details about risk assessments or workplace vaccination policies, please contact James Warren, Charlotte Parkhill or Greg Cain.