September 2021 update

By Vaughan Granier

The Government is asking employers to play a critical role in driving the COVID-19 vaccine campaign by supporting staff to get vaccinated. However, the limited requirement for mandated vaccines has resulted in many employers looking for clarity around how to manage risk and encourage vaccination without breaching employment, privacy, and human rights.

Whether you can lawfully request an employee to get vaccinated 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 examine some of the frequently asked vaccine-related questions flooding our 24/7 Telephone Advisory Service. The general advice below will help you understand your rights as an employer and help you handle any tricky vaccine conversations you may have with employees.

Can I lawfully require my employees to be vaccinated?

There are only two ways that you can require an employee to be vaccinated to do their job:

  1. If their role is specifically mentioned in Schedule 2 of the COVID-19 Public Health Response (Vaccinations) Order 2021
  2. If a health and safety risk assessment can show that the role carries a high risk of exposure to, or onward transmission of, the virus.

COVID-19 Public Health Response (Vaccinations) Order 2021: Schedule 2

This vaccination order requires that all work in MIQ settings, and most border workers must be vaccinated. The specific roles are outlined in Schedule 2. Any unvaccinated worker in the affected roles or workplaces specified in Schedule 2 will not be able to continue work until they’re vaccinated, and you’ll need to agree upon alterative work options.

Those working for the Government who are affected by this health order had until 26 August to receive their first vaccination and those privately employed until 30 September. Newly affected workers have 35 days to get their second dose.

A health and safety risk assessment

To determine whether you can lawfully make vaccination compulsory for a role that isn’t specified in the Public Health Order, the Ministry of Business, Innovation and Employment recommend that employers undertake a thorough and comprehensive health and safety risk assessment. As an employer, you should conduct this assessment on a case-by-case basis in collaboration with the affected employees before making your final decision.

To support vaccination as a condition of employment your assessment must be able to show that the person performing the specific role has a high likelihood of exposure to COVID-19 and a high chance of spreading COVID-19 to others in the community.

Learn more about the health and safety risk assessment on the WorkSafe website.

Can I ask about an employee’s vaccination status?

If certain work is deemed to be high risk and cannot be done by an unvaccinated worker, you can ask an employee about their vaccination status. However, your employees are under no obligation to tell you whether they’ve been vaccinated or to explain their reasoning if they decide not to do so.

If your employee chooses not to disclose their vaccination status to you, you have the right to assume they’re not immunised against COVID-19. In this case, you must tell your employee of your assumption and what this might mean for their ability to continue working in that role.

When an employee informs you of their vaccine status (or doesn’t), you must treat this as personal information and collect, store, and share it in accordance with the Privacy Act 2020.

You cannot redeploy or disadvantage a worker for refusing to disclose their vaccination status unless the role is an health and safety risk for an unvaccinated person to perform.

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.

Whether your business falls within an industry that must enforce a mandatory vaccination policy, or you’ve conducted an exposure risk assessment and have a genuine need to know if employees are vaccinated, you can now capture this information securely inside of HR Assured’s HR software, HRA Cloud.

Some of my employees are unvaccinated at work; what steps can I take to mitigate health risks or concerns from vaccinated colleagues? 

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 must be careful not to 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 unreasonably segregated them from colleagues or placed them on a new and unreasonable work schedule because they chose not to get vaccinated.

While the Government is strongly pushing for everyone in New Zealand to be vaccinated against COVID-19, the mandate is still limited to the specific work or workplaces outline in Schedule 2 of the Public Health Order. Whether the scope of this Health Order will be widened under the current outbreak with Auckland still in Level 4 remains to be seen.

Mask wearing, maintaining physical distancing, split-shifts, and flexible work arrangements (as long as these are fair and reasonable) can all be effective at minimising COVID-19 risk in the workplace and addressing concerns.

If you are implementing changes to work arrangements to mitigate risk and these changes impact employees’ hours and pay, you must precede any decision with proper consultation so affected employees can contribute and agree to the chosen safety measures.

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 that your employees engage with – 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 support this requirement with a health and safety risk assessment. The challenge in this situation is if you’re a small business, it can be difficult (and commercially risky) to demand proof from a client 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. That way, your workers will understand why you’re asking them to be vaccinated and realise it’s not an arbitrary requirement from your side. If your workers still refuse, try and work through redeployment options so that you can satisfy the client’s requirements without being unfair to your own employees.

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. I don’t recommend asking questions around vaccination status in the interview process unless the role specifically requires it. If the role does not require it, asking these questions could lead to allegations of unfair disadvantage through discrimination at the hiring stage. The requirement should be left for the employment offer.

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 few options. First, ask the person in the role to disclose their vaccination status, if they want, and to get vaccinated if they are willing. If they won’t or can’t get vaccinated, you can:

  1. Change an employee’s duties for health and safety reasons, or redeploy them following a fair and reasonable process carried out in good faith; and
  2. 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 during a health crisis, employment law still applies and it’s important that employers work through employment issues with workers 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.

You may have seen in the media recently that the Employment Relations Authority has upheld the dismissal of a customs worker who refused to be vaccinated (GF v New Zealand Customs Service [2021] NZERA 382). The decision here confirms two key points for employers to be aware of:

  1. An employer may be entitled to decide that a position can only be safely undertaken by a vaccinated employee after a suitable assessment; and
  2. If an employer decides based on an assessment that a role must be performed by a vaccinated worker, terminating an employee who refuses a vaccination may be an option if the employer has first attempted alternatives to dismissal, such as redeployment or adjustments to work.

While this case is centred on a workplace where vaccines are mandatory under Schedule 2 of the Public Health Order, it does provide some clarity on the question of dismissal.

In saying that, if you find yourself facing the question of whether to dismiss an employee because of their vaccination status, I encourage you to seek professional advice. 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?

Ultimately, if an employee doesn’t want to be vaccinated, you cannot force them. But in most cases, those who are slow on the uptake are usually time poor, who may struggle to get to a vaccine appointment, or who need more information. Below I’ve listed four practical steps you can take to support employees to get vaccinated.

1. Start the conversations early with your employees

It’s a good idea to communicate with your people and help them understand and appreciate the need for workers who are vaccinated to perform certain roles within your business. You can encourage your people to have a vaccination and give them an opportunity to voice any concerns and provide feedback. Given the sensitive nature of this topic, always keep in mind that vaccination is an individual choice.

2. Make it easy for them

It’s a good idea to make it easy for your employees to get a vaccination by offering them paid time off for an appointment, covering travel costs, providing transport, or facilitating on-site vaccinations.

3. Education is key

Give your employees access to educational and credible resources about the vaccination and its benefits. It’s really important that the information you share is shared from reliable sources to help them make an informed decision.

4. Incentivise your people

With vaccination being a stronger and more economically viable way of protecting our communities from COVID-19, some businesses are supporting employees to get vaccinated with incentives. Steel and Tube are paying its staff $150 to get both jabs!

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’re 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 have question about workplace compliance and the vaccine rollout that we haven’t answered here or you’re looking for answers specific to your business, the team of workplace experts at HR Assured can help.

HR Assured clients can contact our 24/7 Telephone Advisory Service anytime for support.

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.

Vaughan Granier is the National Workplace Relations Manager for HR Assured NZ. He has over 24 years of experience in international human resources, health and safety, and workplace relations management. With over 10 years working in New Zealand and Australian companies, he provides in-depth support to leadership teams across HR, Health and Safety, and employee management.