New Zealand Law Society - COVID-19 vaccination in legal workplaces

COVID-19 vaccination in legal workplaces

Guidance is provided by independent legal advisers to assist lawyers with questions they may have around vaccination and the legal workplace.

About the guidance

The COVID-19 pandemic has brought about a range of new situations for employers, employees and clients in legal workplaces. The Law Society engaged Meredith Connell to provide guidance on vaccination in legal workplaces. This guidance is intended for lawyers.

Guidance from Meredith Connell

Introduction

  1. The New Zealand Law Society has asked Meredith Connell to prepare Q&As and guidance around advice to the legal profession for dealing with COVID-19, the Delta variant and the fact there is currently community transmission.
  2. The below questions and answers reflect the push and pull of rights and duties created by different statutes and rules, primarily:
    1. the Health and Safety at Work Act 2015;
    2. the Privacy Act 2020;
    3. the Human Rights Act 1993;
    4. the New Zealand Bill of Rights Act 1990; and
    5. the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.
  3. Under the new r 11.4.4 of the Conduct and Client Care Rules, every law practice’s designated lawyer will be required to certify that (among other things) the law practice is complying with its obligations under the Health and Safety at Work Act 2015, as part of their annual certification. Law practices should be considering these issues now.
  4. How overlapping duties can be reconciled is fact dependent. This area is dynamic and subject to amendment in the face of changes to the public health response to the COVID-19 pandemic. This guidance may change as the response changes.  So, while not a substitute for a practitioner’s own legal analysis on these issues in their own particular context, we hope that what follows is helpful and practical guidance. 


    Questions & Answers

  5. The questions and answers we believe would be helpful to provide are as follows:

    1. I am a partner at a law firm, can I ask my clients if they are vaccinated?

      1. Yes, but you must have a lawful purpose for asking the question.1
      2. Employers such as law firms have a duty to ensure, so far as reasonably practicable, the health and safety of its workers, and “other persons” who may be affected by the business carried out by the law firm.2 If you are asking clients whether they are vaccinated to uphold this duty, you are likely to have a lawful purpose.
      3. Even if you have a lawful purpose in asking, clients can still refuse to provide their vaccination status. It is their personal information.3  If a client refuses to provide you with this information, you can presume that they are unvaccinated, but only if you advise the client of this presumption.4
      4. If a client provides you with their vaccination status, you must collect, store and share that information in accordance with the Privacy Act 2020.
    2. A client has asked me if I am vaccinated. Do I have to provide them with this information?

      1. The Conduct and Client Care Rules set out a number of categories of information that a lawyer has a professional obligation to disclose to their client, and vaccination history does not fall within these categories.5
      2. A client is entitled to ask a lawyer about their vaccination status. The lawyer does not need to answer. This decision is a matter of personal choice.
      3. But, participants in the justice sector are encouraged to be vaccinated due to their contact with vulnerable members of the community. It would also be a courtesy to court staff and other practitioners if a lawyer were to advise, where necessary, that they had not yet been vaccinated.  And, a client has the right to terminate a retainer at any time6 and they may choose to exercise that right, should they not feel comfortable with a decision not to answer a question about vaccination status.
    3. A client is refusing to meet with me because I am unvaccinated. What should I do?

      1. If your client is happy for you to provide legal services without meeting with them in person, you should provide legal services remotely.
      2. If your client requires a meeting, but refuses to meet with you because you are unvaccinated, you should tell your employer about this occurrence (if you are an employee) and/or see whether the matter (or meeting) can be re-allocated to a co-worker.
      3. If the matter cannot be re-allocated, and you do not want to be vaccinated, you and/or your employer should advise the client of their ability to engage another lawyer if the client believes that to do so is in the client’s best interest.
    4. If a client is unvaccinated (or refusing to provide their vaccination status), can I refuse to meet with them in person? What if I am immune compromised (or I live with someone who is immune compromised)?

      1. Lawyers have a duty to accept instructions and complete a retainer.  But, so long as refusing to meet in person does not affect a lawyer’s ability to “act competently, in a timely way, and in accordance with instructions received and arrangements made”,7 nothing in the Conduct and Client Care Rules requires in-person meetings.8
      2. You should make clear to the client before agreeing to the instruction that you intend to perform your work remotely where possible and, for new clients, deal with this possibility in the letter of engagement.
      3. In some cases, clients will not easily be able to give instructions or receive advice without an in-person meeting. For example, they may live in community housing with limited access to a phone or the internet.  Usually, there will be practical ways around this problem: the lawyer may agree to meet outside, or facilitate access to a phone at their office or otherwise.
      4. If there is no practical fix, consistent with the position under Health and Safety at Work Act 2015 (discussed below), the lawyer could refuse to take the instructions of a client insisting on seeing them in person where the lawyer believes, on good grounds, that to do so would create a serious risk to their health or safety.
    5. I am a partner at a law firm. One of my employees is refusing to meet with unvaccinated clients, what can I do?

      1. As noted above, it should generally be possible for a lawyer to provide legal advice without meeting with clients in person.
      2. If your employee cannot provide legal advice without meeting with the unvaccinated client, you can ask that they meet with the client to provide legal services, if it is reasonable to do so.
        1. Under s 83 of the Health and Safety at Work Act 2015, an employee can refuse to carry out “unsafe work”.9
        2. This section engages where the employee subjectively believes that carrying out the work would expose them (or another person) to a serious risk to the health or safety of them or that other person that arises “from an immediate or imminent exposure to a hazard”.  
        3. If an employee forms the view that meeting with a client would expose them or the client to a serious risk to health, they have an obligation to attempt to resolve this issue with you as soon as is practicable.10 Exposure to COVID-19 is likely a “serious risk” in terms of the statute.11
        4. If the matter remains unresolved, the employee can continue to refuse to meet with the unvaccinated client if they believe, on reasonable grounds, that meeting with unvaccinated clients would still expose them or the client to a serious risk.
        5. Whether the employee’s belief is reasonable will depend on the facts.
        6. For example, if there is little community transmission, the employee is vaccinated and/or the client and employee are able to physically distance, it is unlikely that there would be a serious risk to the employee’s health and safety. In those circumstances, it would likely be reasonable and lawful for you to direct your employee to meet with the unvaccinated client.
    6. I am a partner at a law firm. One of my employees is refusing to attend court, what can I do?

      1. There may often be ways to avoid an in-person appearance, whether by seeking to appear by VMR link, or having matters dealt with on the papers or by consent. But, where an in-person requirement is unavoidable, the same “unsafe work” analysis described above will apply.
      2. Whether it is reasonable for an employee to believe attending court is unsafe will be informed by the steps the court system has put in place to protect its users. The Courts of New Zealand have implemented a number of mechanisms to reduce the risk of transmitting COVID-19 while in court – e.g:
        1. restricting court access at heightened alert levels; and
        2. asking that those who are permitted into the court building wear masks, wash/sanitise hands often and maintain social distancing.
    7. Can I keep unvaccinated clients from my building?

      1. We refer to our earlier comments about the ability to provide legal services in a competent way remotely.  Also, note the primary duty of care in the Health and Safety at Work Act 2015 to ensure, so far as reasonably practicable, the health and safety of workers.12  Keeping unvaccinated clients from your building could be a reasonably practicable step.13
    8. Can I refuse instructions from a client who is unvaccinated?

      1. Vaccination status is not a “good cause” to refuse to accept instructions under r 4.1 of the Rules. Vaccination status (or even having COVID-19 itself) likely falls within the category of characteristics specially stated not to be good causes in r 4.1.1, on the basis that it is a “personal attribute of the prospective client” and possibly on the basis that it would be one of the “grounds of discrimination prohibited by law including those set out in s 21of the Human Rights Act 1993”.14
      2. However, as discussed above, there is no need for a lawyer to hold an in-person meeting, but a lawyer should consider what practical measures they can accommodate to fulfil their professional obligations.
    9. Can I terminate a retainer with an existing client if they are unvaccinated?

      1. No—the Rules make clear that the same things that are not good causes for refusing to accept instructions are not good causes for terminating a retainer.15
      2. However, note that in the worst-case scenario, since the amendments implemented in July 2021, threatening behaviour is a good cause for terminating the retainer on reasonable notice.16 That is to say, if the client acts in a way that causes the lawyer to fear for their personal safety—for example, by saying that they will try to meet the lawyer in person contrary to a request not to do so—this could be good grounds for termination.
    10. I’m a criminal lawyer, my client is unvaccinated, refuses to wear a mask and is insisting on seeing me in person, and going to court in person. What can I do? 

      1. As noted above, a client does not have a right to in-person meetings when a lawyer can fulfil their fundamental obligations remotely.  If you conclude that you can meet your fundamental obligations without in-person meetings, then you should inform your client accordingly.
      2. If the client disagrees, then they can choose to discharge you from the engagement and/or seek reassignment.
      3. Access to justice and the right to appear before the Court and to be heard are important. There is likely to be guidance and additional information coming from the Courts around additional protective measures.   And, as noted above, the court system currently has put in place a number of measures to protect its users.
    11. My employer requires me to come into the office to work, but I would feel safer continuing to work from home. What should I do?

      1. Your employer has a duty to provide you with a safe workplace, and to mitigate any risks to your health and safety, so far as is reasonably practicable.17 If you believe your employer is failing to do so, you should talk to your employer about your concern, and, if possible, tell them what you think it could do to make you feel safe.18 
      2. If, following this conversation, your employer still wants you to come into the office, but you still do not think it is safe to do so, you can continue to refuse to come into the office, if you believe, on reasonable grounds, doing so would expose you to a serious risk to your (or another person’s) health and safety.19
      3. However, if there is little community transmission, your co-workers are highly vaccinated, you are vaccinated, unvaccinated clients are excluded and/or your employer has put in place other safety measures (e.g. mask use and physical distancing) it is unlikely that there will be reasonable grounds for you to refuse to go to the office.
      4. In those circumstances, it may be lawful and reasonable for your employer to require you to work from the office.   
    12. My employer says I can only come into the office if I am vaccinated, but I don’t want to get vaccinated. What should I do?

      1. The Government has announced its intention to introduce legislation that governs the steps employers need to take before they can lawfully mandate vaccinations for employees whose work is not covered by a Government Order or the COVID-19 Protection Framework. Subject to that legislation, the following guidelines are provided for legal practitioners.
      2. Your employer can deny you access to the office, if it considers it is required to do this to ensure, so far as is reasonably practicable, the health and safety of its workers, and others who may be affected by the employer’s business (i.e. clients and other visitors to the office).20
      3. Generally, an employer will undertake a health and safety risk assessment prior to advising you not to come into the office. If you think your employer’s decision not to allow you into the office is unfair, you should tell your employer, and ask for any information relevant to the decision to deny you access to the office (e.g. a health and safety risk assessment, if they have one).
      4. You could suggest obtaining and providing your employer with regular COVID-19 test results, and reach an agreement around your return to the office on this basis.
      5. If your employer wants to permanently change your place of work to your home address it may, depending on the terms of your employment agreement and how it defines the location of work, require your agreement.
    13. I am an employee at a law firm. My employer wants to introduce a COVID-19 testing programme for all staff – can my employer introduce this policy and if they do introduce it, can I refuse to get tested? 

      1. Inevitably, this point will be litigated at some point soon. Subject to legal developments, the following guidelines are provided:
        1. There are circumstances where an employer can lawfully require an employee to undergo a medical test.21 As determined in the context of drug-and-alcohol testing, to justify testing, employers must weigh their duty to provide a safe workplace against relevant human-rights standards in, or exemplified by, the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993.22  
        2. Depending on factors such as the nature of your role, the nature of your workplace, whether you are vaccinated, and the rate of community transmission, it may be reasonable for your employer to introduce a COVID-19 testing programme.
        3. Our preliminary view is that there are likely to be a wide range of circumstances (outside those circumstances mandated by Orders made under the Public Health Response Act 2020) where a testing policy will be reasonable.23   
        4. Before implementing this testing programme, your employer should consult with you, and other staff, about it.   
        5. If your employer introduces a COVID-19 testing programme, you can refuse to be tested, but this may result in you breaching the policy, and lead to disciplinary action.
    14. I am/I work for a public employer.

      1. Note that the Public Service Commission has released guidance for public sector agencies and their employees under s 95(a) of the Public Service Act 2020, available here.

    Footnotes

    1        Privacy Act 2020, s 22, information privacy principle 1.

    2        Health and Safety at Work Act 2015, s 36(1)(a) – “A PCBU must ensure, so far as is reasonably practicable, the health and safety of— (a) workers who work for the PCBU, while the workers are at work in the business or undertaking…”

    3        Privacy Act 2020, s 7.

    4        Privacy Act 2020, s 22, information privacy principles 7 and 8.

    5        Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, Chapter 7.       

    6        Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 4.3.

    7        Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, Preface.

    8        Note r 1.7 of the Conduct and Client Care Rules, which allows for a lawyer to provide any information in an “acceptable electronic form” which provides some form of analogy.

    9        Health and Safety at Work Act 2015, s 83(1) – “A worker may cease, or refuse to carry out, work if the worker believes that carrying out the work would expose the worker, or any other person, to a serious risk to the worker’s or other person’s health or safety arising from an immediate or imminent exposure to a hazard”.

    10      Health and Safety at Work Act 2015, s 83(2)(a) – “A worker may continue to refuse to carry out the work if (a) the worker attempts to resolve the matter with the PCBU as soon as practicable after first refusing to do the work…”.

    11      See Worksafe New Zealand v Rentokill Initial [2016] NZDC 21294 for a discussion in the context of Hepatitis B.

    12      Health and Safety at Work Act 2015, s 36.

    13      Note the Health and Safety at Work (General Risk and Workplace Management) Regulations 2016, reg 6(3)(b) and its reference to the action of  “isolating the hazard giving rise to the risk to prevent any person coming into contact with it”. See also WXN v Auckland International Airport Ltd [2021] NZERA 426 at [47]:

    A PCBU employer has a primary duty to ensure as far as reasonably practicable, the health and safety of its workers and those affected by its work. COVID-19 poses a risk to the health and safety of workers and those affected by the work. It poses a very real and serious risk to health and safety. It is a harm that all PCBU employers are required to manage.

    14      Assumed but not decided in GF v Minister of Covid-19 Response [2021] NZHC 2526.

    15      Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 4.2. 

    16      Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 4.2.1.            

    17      Health and Safety at Work Act 2015, s 36.

    18      Employment Relations Act 2000, s 4, in particular the mutual obligation to be “responsible and communicative”.  

    19      Health and Safety at Work Act 2015, s 83(2).

    20      Health and Safety at Work Act 2015, s 36.

    21      New Zealand Amalgamated Engineering Printing and Manufacturing Union Inc v Air New Zealand Ltd (2004) 7 NZELC 97,367.

    22      Ibid at [252].

    23      Based, among other things, on the discussion of balancing of rights in the context of vaccine mandates in GF v Minister of Covid-19 Response [2021] NZHC 2526 and the requirement in s 36(3) of the Health and Safety at Work Act 2015 that so far as is reasonably practicable a PCBU must ensure “that the health of workers and the conditions at the workplace are monitored for the purpose of preventing injury or illness of workers arising from the conduct of the business or undertaking”.     

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