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Naomi Jones, Adrienne Scott, Charlotte Bates | 6 October 2021

COVID-19 Vaccinations and the Workplace

The campaign to get New Zealanders vaccinated against COVID-19 is in full flight, but vaccination can be a touchy and divisive subject for many people.

Vaccination-related headlines are dominating our news and vaccination in the workplace seems to be ones of the most complex issues to navigate.

Given the public health implications and risks presented by the Delta strain of COVID-19, it is understandable that more and more employers are looking at introducing vaccination policies, but what can employers actually do? Because the situation is changing rapidly, employers will need to stay up to date with where there are cases of COVID-19 in the community, as well as the Government’s current policies and guidelines.

Below we address five questions we know many employers are grappling with. There are no easy answers to some of these questions - each employer will need to consider its own circumstances. This will include considering the nature of the business, the type of work being carried out, and the current risk that COVID-19 is presenting to your business and the wider community.

Regardless of how your workplace is affected, it’s important to remember that employment laws apply even though there is a global pandemic

This means that you need to act in good faith at all times and follow a fair process before making any decisions that may impact on your people. As always, you should be engaging with your people and communicating with them as much as possible trying to understand any concerns they may have.

Can employers require their employees to be vaccinated, even if they are not subject to a public health order?

Employers cannot require employees to be vaccinated - the right to refuse medical treatment is enshrined in the Bill of Rights, and no one can be forced to be vaccinated. However, employers can require certain work to be done by vaccinated workers where there is a risk to health and safety. For example, border and MIQ workers.

Requiring vaccination for work covered by a Public Health Order

A recent case in the Employment Relations Authority (GF v New Zealand Customs Service [2021] NZERA 382) upheld that where there is a Public Health Order in place mandating work can only be performed by vaccinated workers, an employer will be justified in dismissing an employee who is not vaccinated. This is provided that a fair process is followed and other options are considered before reaching a decision to dismiss. NZ Customs followed a fair process and looked for alternative work for the employee prior to dismissing her. The High Court has ruled that NZ Customs did not breach the employee’s right under the Bill of Rights to refuse medical treatment and that the Public Health Order was reasonable.

Requiring vaccination in other workplaces (where work is not covered by a Public Health Order)

For work not covered by a Public Health Order, employers will need to follow different processes depending on whether people are new or existing employees.

When it comes to new employees, employers can specify certain conditions that must be met prior to employment, provided these conditions are reasonable and not discriminatory. This could apply to the requirement to be vaccinated but it will depend on the circumstances.

When it comes to existing employees, employers will need to carry out a health and safety risk assessment first to determine whether it is reasonable to specify that certain work must be done by a vaccinated worker.

Can employers offer their employees incentives to get vaccinated?

In an effort to be good corporate citizens, many employers are offering employees incentives to get vaccinated. Employers do need to be aware that offering incentives to some employees and not others may lead to claims of discrimination. For example, if an employee has a medical condition or holds a particular religious belief which prevents them from being vaccinated, they may feel that they are being treated less favourably if they are not able to access the vaccination incentive offered to other employees.

Employers should consider whether their vaccination incentive approach could include an exceptions process whereby employees with a medical condition or religious belief could still access the vaccination incentive.

We are seeing many employers who are thinking of creative ways to encourage and enable their employees to get vaccinated in a way that doesn’t create a risk of discrimination. For example, some employers are providing time off for people to get their vaccination, providing transport for employees to get to and from vaccination centres, arranging onsite vaccinations, or making vaccination information easily accessible to their entire workplace.

Can you ask for an employees’ vaccination status?

Yes, employers can request information about vaccination status in limited situations. Under the Privacy Act 2020, if an employer can demonstrate that it has a legitimate need to know the vaccination status of its employees, including where a Public Health Order is relevant, then information about vaccination status may be requested. There may be other situations where an employer has a legitimate need to know about an employee’s vaccination statues including where an employer needs to understand or assess health and safety risk.

If employers cannot demonstrate a legitimate need to know the vaccination status of its employees, then the employer should carefully consider whether they should be asking about this.

Employees are not required to share their vaccination status or, if they are not vaccinated, the reasons why they are not vaccinated.

If an employer becomes aware of an employee’s vaccination status they should not share information about vaccination status. Employers may however share this information with the employee’s consent or where an exception to Principle 11 of the Privacy Act applies. One such exception is that the disclosure is necessary to prevent or lessen a serious threat to public health or public safety.

If an employer can demonstrate a legitimate need to know an employee’s vaccination status and an employee does not share this information, an employer may assume the employee is unvaccinated but should advise the employee of this assumption.

Can you ask non-vaccinated employees to stay away from work?

If COVID-19 is presenting immediate and significant health and safety risk to a workplace, an employer may decide that requiring some/all work to be carried out by vaccinated people only is a reasonable measure to meet their health and safety obligations.

Before making this decision, an employer would need to carefully assess the health and safety risk in their workplace on a role-by-role basis, taking public health guidance and the risk presented to the wider community by COVID-19 into account.

If the employer decided that it was reasonable to require work to be carried out by vaccinated people only, and an employee was unvaccinated, the employer may be able to require the employee to stay away from work. ‘Staying away from work’ could mean considering many different things, including suspending the employee on health and safety grounds for a period of time, requiring the employee to work from home where appropriate, redeploying the employee to another part of the business, or terminating their employment.

It will be critical to follow a fair process which means consulting with the employee in good faith before taking any action that could affect their employment.

Can an employee refuse to come to work if they work alongside a colleague who is unvaccinated?

Under the Health and Safety at Work Act 2015, a worker may refuse to carry out work if they believe doing so will expose them or any other person to a “serious risk” to their or the other person’s health and safety. There must be an “immediate or imminent exposure” to the hazard, and the worker must attempt to resolve the matter with their employer in good faith, preferably before they take any action.

In the context of COVID-19, this may mean that an employee is entitled to refuse work if their employer is operating in a way that breaches health guidelines or orders in a way that presents an imminent risk to the safety of the employee or others. However, as with all COVID-19-related queries, it is important to consider each situation on a case-by-case basis.

The threshold for being entitled to refuse work is high. In most workplaces, the risk presented by an employee working alongside an unvaccinated colleague is unlikely to meet the threshold for refusing to work, especially where the employer is taking other steps to mitigate the risk of employees being exposed to COVID-19 (for example, complying with public health guidance by providing appropriate PPE, enabling social distancing, and encouraging good hygiene practises).

On the other hand, the risk presented by an employee working alongside an unvaccinated colleague may meet the threshold for refusing to work if the employer is breaching health guidelines or orders. For example, if the workplace is not following a Public Health Order by allowing a non-vaccinated employee to work. This will especially be the case where the worker has raised their concerns with their employer first.

We encourage all employers to have conversations with their employees before things get to this point:

  • Acknowledge that COVID-19 has been unsettling for everyone and you can understand why they might be feeling worried.
  • Explain that the Government has not made COVID-19 vaccination mandatory.
  • Explain that you will continue to monitor the situation and may review vaccination requirements if things change.
  • Explain the health and safety measures you are taking and encourage their ongoing feedback to help employees feel safe.

These guidelines were published on 6 October 2021. New information is being provided regularly and we encourage you to refer to the Ministry of Health for the most up-to-date guidance:

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