By Sascha Nicoll
Updated July 14 2021
The COVID-19 vaccine rollout in New Zealand has been running since late February with border workers, MIQ workers (and their household contacts), high-risk frontline workers and people living in high-risk places, the priority for immunisation. People at high risk of getting very sick from COVID-19 are due to be vaccinated from May; the rest of the population will have access to the vaccination from July this year.
As a business owner or employer, you’ll be aware of the disruption and economic uncertainty that can follow a community outbreak of coronavirus. The good news is, provided there are high levels of vaccinated people in or population, the health risk and chance of another lockdown is low. But here’s the question many employers are tiptoeing around right now: “can you make your workers get the jab?”.
Although vaccinations will be free and available to all New Zealanders, they’re not mandatory, and you can’t force someone to have one. Whether the vaccination can lawfully be a condition of employment is complicated; it will depend on your type of business, where an employee works and what nature of work they undertake. In this article, I answer some common questions to help you navigate tricky vaccine conversations with your employees.
Can I lawfully require my employees to be vaccinated?
To determine whether you can lawfully make vaccination compulsory for an employee, the Ministry of Business, Innovation and Employment recommend that you undertake a thorough and comprehensive health and safety risk assessment. You should conduct this assessment on a case-by-case basis in collaboration with the affected employees before making your final decision.
Two things you need to consider as part of this process are:
- the likelihood of your employees being exposed to COVID-19 while performing their role; and
- the potential consequences of that exposure (such as community transmission).
In addition to this, on Monday, 12 of July, the government announced an amendment to the health order that came into effect in April, which mandated vaccinations for public and private MIQ workers.
The updated health order now includes port workers, airside workers at airports accommodation providers for aircrews and workers handling items removed from ships, aircraft or MIQ. This extension is expected to support a higher uptake of vaccination levels across all border facing jobs.
Those working for the Government will have until 26 August to receive their first vaccination and those privately employed until 30 September.
What if my employee won’t disclose whether they’ve had a vaccination?
Your employees are under no obligation to tell you whether they’ve been vaccinated or explain their reasoning if they decide not to do so. If your employee chooses not to disclose their vaccination status to you, you have grounds to assume they’re not immunised against COVID-19. In this case, you must tell your employee of your assumption.
Can I share my employees’ vaccination status?
Any information you obtain regarding an employee’s vaccination status should be kept confidential, secure and should only be shared internally on a need-to-know basis.
Can I take steps to reduce health risks if I have an unvaccinated employee at work?
You have the right to take reasonable steps to mitigate any health risks that your workers or community may face from having an “unvaccinated” employee at work. But you can’t discriminate against a worker just because you assume (or know) that they refuse to get the COVID-19 vaccination. An employee may have grounds for a personal grievance if your actions have put them at an unjustifiable disadvantage. For example, if they can show that you segregated them from colleagues or placed them on a new and unreasonable work schedule because they chose not to get vaccinated.
Can another business ask that my employees be vaccinated?
Sometimes the requirement for your employees to be vaccinated may come from another business or client with who your employees engage – common positions that may fall into this situation include delivery drivers or on-site consultants.
Any company insisting that workers be vaccinated should be able to justify this requirement. Although, if you’re a small business, it can be difficult (and commercially risky) to demand proof before you comply.
If you’re in this situation, be proactive and explain to your employees why a client or another business you work with has made vaccination mandatory. This way, your workers will understand why you’re asking them to be vaccinated and realise it’s not an arbitrary requirement from your side.
What about new employees?
If it’s reasonable for a role, you may require vaccination for new hires as a condition of employment. Before you do this, you must first assess the genuine risk if a non-vaccinated person is in this role. Once you have established that being unvaccinated would present a threat to the employee and your workplace, you must stipulate in the employment contract or letter of offer that your new employee must prove their vaccinated status before starting work.
Okay, I have a role where not being vaccinated creates a health risk. Now what?
Right. If you’ve completed a comprehensive risk assessment and found a role that requires a vaccinated person to do the work, or the government order applies to your workers you have a couple of options:
- Change an employee’s duties for health and safety reasons, following a fair and reasonable process carried out in good faith; and
- Negotiate variations to the existing employee’s terms and conditions of employment to require vaccination.
Remember, you should always consult with an employee before making any change to their role. Some options to think about with your employee to help mitigate health risks include alternative duties, additional personal protective equipment, changing work arrangements, or leave (in agreement with the employee and preferably paid).
Can I dismiss someone for refusing to get a vaccination?
Even with the new government order announced on July the 12th, employment law still applies and it’s important that employers work through a process in good faith. If an employee who’s in a role that requires vaccination doesn’t want to get vaccinated, you should work with them to look at other tasks they can do or possible redeployment. Dismissing or making the employee redundant should most definitely be the last option.
I encourage you to seek professional advice before changing someone’s role or employment status. If in doubt, you can always contact the HR Assured team for their expert advice and assistance.
How can we play our part as an employer?
Firstly, start the conversations early with your employees. Hold discussions where you can encourage them to have a vaccination and hear their concerns and feedback. Given the sensitive nature of this topic, always keep in mind that vaccination is an individual choice.
Secondly, you can make it easy for your employees to get a vaccination by offering paid time off for an appointment or facilitating on-site vaccinations.
Thirdly, give your employees educational resources about vaccination and its benefits from reliable sources to help them make an informed decision.
Vaccine hesitancy can be an uncomfortable conversation for some people and can create tension in the workplace. However, something as simple as listening to any concerns your employees may have around immunisation, respecting different opinions, and taking reasonable steps to ensure you are mitigating health risk without putting pressure on your employees can help make the “vaccination conversations” easier for all involved.
For up-to-date guidance on Ministry of Health guidelines and vaccinations head to their website.
If you’re an HR Assured client, contact our 24/7 Telephone Advisory Service. Not an HR Assured client and need some advice? The team at HR Assured can support your business on a range of workplace matters. Contact us today to arrange a confidential, no-obligation chat.
Sascha Nicoll is an Employment Relations and Safety Consultant at HR Assured New Zealand. She has over 15 years of experience working in the HR industry in both consulting and in-house roles. Sascha supports business leaders on a range of workplace matters including, people management, health and safety, procedural development and HRIS support.