Vaccinations in the workplace

Since New Zealand has started to roll out its COVID-19 vaccination programme, it has created several complex issues in people’s daily life, including in the workplace. This page covers the following topics:

Who is required to be vaccinated?

Can an individual be forced to be vaccinated?

The answer is a straightforward “No”. The New Zealand Bill of Rights Act 1990 gives New Zealanders the right to refuse to undergo any medical treatment.

But what about in the workplace, can employers require their employees to be vaccinated?

This is where it gets tricky as it would depend on the employees’ roles and circumstances.

Currently, there are broadly three categories of workers when it comes to COVID-19 vaccinations in New Zealand.

First category: Workers fall within the “affected persons” of Vaccination Order 2021

On 30 April 2021, the COVID-19 Public Health Response (Vaccinations) Order 2021 came into force.

The purpose of the Vaccinations Order was to prevent, and limit the risk of the outbreak or spread of COVID-19 by requiring certain work to only be carried out by affected persons who are vaccinated.

The Vaccinations Order requires all “affected persons” working in these roles to be vaccinated against COVID-19. It also requires all government officials to be vaccinated before carrying out work in other high risk border settings.

These workers can and are required to be vaccinated in accordance with the Vaccination Order:

  • Staff working at the Managed isolation and quarantine facilities
  • Workers at the ports and airports
  • Other frontline staff

There are several employees in above facilities who have already lost their jobs for refusing vaccination in reliance of the Public Health Order. One of these workers has taken her unjustified dismissal claim to the Employment Relations Authority. You can read the determination here.

Second category: COVID-19 high-risk roles

Employers have obligations under the Health and Safety at Work Act 2015, to minimise the risks associated with COVID-19 in their workplace.

Those employees are not covered by the Public Health Order but may be required to be vaccinated by their employers on health and safety grounds.

These workers would usually be working in what we consider “high risk industries” when it comes to COVID-19, such as rest homes, healthcare and aged care facilities. Several of these employers have already introduced mandatory vaccination policies that require vaccination for particular roles in order to protect both their staff and the residents.

If there’s a high likelihood that the employee performing the role may be exposed to COVID-19 and the consequences would be significant for other people, e.g. The employee’s role involves regular contact with people who are at high risk of severe illness if they contract COVID-19, it’s likely the role needs to be performed by a vaccinated person.

It is important and useful to consider the role rather than the person performing the role. Specifically, it is the nature of the role that requires vaccination, therefore employers should consider whether they have any roles that require vaccination rather than looking at the individuals who perform those roles.

Employers can require a specific role be carried out by a vaccinated employee, where there is high risk of contracting and transmitting COVID-19 to others.

When the employers want to require particular roles to be performed by vaccinated employees, they will have to carry out a health and safety risk assessment to support this. This also must be done in consultation with their employees, e.g. they must assess the risk in collaboration with their employees and their representatives.

To carry out a risk assessment for exposure to COVID-19, the employers need to consider two main things about the role:

  • the likelihood of a worker being exposed to COVID-19 while performing the role, and
  • the potential consequences of that exposure to others (e.g. community spread)

WorkSafe has released guidance to help employers conduct this risk assessment to determine whether a specific role in the business must be performed by a vaccinated worker.

Third category: Everybody else

It is unlikely that an employer can justifiably require vaccination where neither of the above categories apply. Most businesses will fall into this category as the bar to meet the health and safety justification for mandatory vaccination is high.

These employers cannot require vaccination but can certainly encourage it. For example, allowing employees paid time off work to get themselves and/or their family vaccinated.

If employers are seeking to mandate vaccinations for their staff and they are outside of certain industries and occupations, there are no explicit laws currently in legislation for employers to direct their employees to comply with.

Employers that want their staff to be vaccinated may see themselves facing an unjustified dismissal claim if an employee were to be dismissed as a result of refusing vaccination, due to the direction given not being reasonable.

If an employee is not vaccinated, and does not currently intend on getting vaccinated, the employee is not required to provide an explanation or reason why. However, if the employee does choose to disclose information, this must be held in confidence and protected in accordance with the privacy principles.

Reminder: As always, communication and consultation is key. If any employers are unsure, we would strongly advise these employers to seek legal advice prior to terminating an employee’s employment.
Encouraging vaccinations in the workplace

When an employer is unable to mandate their employees vaccination, they are still able to encourage their employees to do so and provide them with any relevant government health advice.

Employers have a duty of care to their employees and must do everything that is reasonably practicable to reduce the risk to their health and safety in the workplace.

Vaccinations can be seen as a way to do this, but all other reasonable measures to control the risk of transmission and infection should also be considered and put in place where applicable.

Several employers have started incentivising vaccination as a way of encouraging vaccination. Some of the incentives being used include, for example, providing employees paid time off work to get vaccinated, providing a day of paid special leave once the employee can prove they have had the vaccination, paying a cash bonus upon proof of vaccination, putting vaccinated employees into “lotto-like” draws for cash or groceries vouchers once they have been vaccinated.

However, employers should be careful and cautious with vaccination incentive schemes as they could throw up discrimination and/or disadvantage issues if there are employees who cannot be vaccinated for a reason which falls within a prohibited ground of discrimination under the Human Rights Act 1993. This will include refusing vaccination for religious or medical reasons.

Misinformation in the workplace

If an employer is aware of misinformation regarding the COVID-19 vaccine in the workplace or the topic of vaccinations are causing conflict amongst employees, it is recommended for the employer to hold a meeting with the relevant employees that are involved. This gives the employer an opportunity to investigate the concerns being raised.

If an employee is found to have purposely spread misinformation in the workplace despite a policy or direction not to do so, the employer may consider disciplinary action for failure to comply with a reasonable direction.

The actions taken regarding misinformation should depend on what has been said, any subsequent meetings, the severity of what has been said, and the potential impact it could have on other employees.

Privacy consideration – Vaccination status disclosure

Employers can ask their employees whether or not they are vaccinated, however, the employees can refuse to answer.

Generally, employees do not need to disclose or prove their vaccination status to their employers unless it is lawful and reasonable in the circumstances or to provide a reason for their refusal to be vaccinated as part of a mandatory vaccination policy.

When certain work cannot be undertaken by an unvaccinated employee, the employer is able to ask their employees about their vaccination status.

If the employee’s role is one where there is a requirement to be vaccinated and the employee refuses to disclose or provide evidence of their vaccination status, the employer may assume that the employee has not been vaccinated for the purpose of health and safety.

Employers should also remember the requirements of the Privacy Act 2020 when considering asking these questions, including:

  • They can only collect personal information for a lawful purpose
  • They must advise their employees of the purpose of collecting the information
  • The information must be kept safe
  • The information must only be disclosed to others if it is lawful to do so and with consent.

However, employers should first inform employees of any assumptions that are being made about them. The employee should also be informed of the outcome if they are unable or refuse to be vaccinated or do not disclose their vaccination status.

Alternate arrangements to accommodate the health and safety requirements of the business may need to be put in place. Employers should explore all reasonable alternatives, such as working from home or another location, alternative duties, additional PPE or enhanced safety practices.

Potential workplace tensions regarding vaccinations

Since the COVID-19 Delta variant outbreak in New Zealand, the data and statistics shows more New Zealanders in major demographic groups will get a COVID-19 vaccine.

The results also suggest that the number of people who say they are unlikely to or will refuse to get vaccinated dropped to 12 per cent, down from 24 per cent in December 2020.

While not all 12 per cent will be in employment, that still suggests a significant number of employees will refuse vaccination. Some employees will refuse vaccination for medical or religious reasons, while others hold strong views or sceptical concern about potential long-term side effects.

This will cause potential workplace tensions such as workers who refuse to work alongside unvaccinated workers, or who seek alternative working arrangements to avoid exposure to unvaccinated workers. In an extreme circumstance, there may be bullying and/or isolation of unvaccinated workers.

In most situations, the employers will not be able to ask the employees if they are vaccinated, or why they are not vaccinated, unless these employees’ role justifiably requires vaccination. The same will apply for prospective employees in job interviews.

If an employer knows the vaccination status of an employee (or the reason for that status), they will not be able to disclose that status to other employees.

Businesses that made it through the lockdowns, but now realise they may need to make significant changes to their structure to adapt to and thrive in the “new normal”.

In practice, this means that many employers are going to end up with a mixed vaccination status workforce.

Employers should start to consider and prepare for new COVID-19 driven activity; employers dealing with vaccinations, and the challenges that will come with a mixed vaccination-status workforce.

Many businesses have introduced a new policy relating to vaccinations, with the aim to educate and encourage vaccination by providing information and support for those wanting to get vaccinated. They may also cover off all of these vaccination related issues in a policy so that both employee and employer are clear on the expectations and responsibilities.

Successfully navigating the complexity of a post-COVID19 employment environment will require better preparation by employers, with some thought given in advance to how best they can support their workplace and navigate any vaccination-related challenges.