The NZ government has released information on the rollout of COVID-19 vaccines and how businesses and employers can play their part.
Workplaces are a crucial part of making access to vaccines as easy as possible and the government recommends that employers support workers to get vaccinated by doing things like:
- facilitating on-site vaccinations (the government is providing vaccinations free of charge);
- allowing employees to get vaccinated during work time without loss of pay;
- providing workers with information from the Ministry of Health (MoH) about vaccination and its benefits.
The information on this page is correct as of 14 September 2021.
Can I require employees to be vaccinated?
Many employers are asking whether they are able to insist that their workers get vaccinated against COVID-19. This is where things get a bit murky.
Under the COVID-19 Public Health Response (Vaccinations) Order 2021 all work in managed isolation and quarantine (MIQ) and other high-risk border settings must be done by people who have been vaccinated against COVID-19. Find out which workers must be vaccinated.
However, for the general public, vaccination isn't going to be mandatory and the government advice clearly states that employers cannot require an individual to be vaccinated unless it is in the high-risk border settings covered by the order.
Employers are able to require that a specific role be performed by a vaccinated person. To do so, you must first do a health and safety risk assessment to support this requirement, and you must do this assessment “in collaboration with workers, unions, and other representatives”.
You can also negotiate with employees on changes to existing conditions of employment to require vaccination or make changes to a person’s duties for health and safety reasons, if the employee is not vaccinated.
Any proposed changes to work arrangements or duties must be done in consultation with and agreed to by employees.
The government warns that employers must avoid unjustifiably disadvantaging their employees. This is a technical term which means that employers must not do anything which affects their employees employment or conditions of work, in a way that disadvantages them and/or makes it harder for them to do their job, if it’s not in good faith or justifiable.
For example, giving vaccinated employees more hours of work compared to their unvaccinated colleagues, without having a legitimate health and safety reason to do so, would likely be viewed as unjustified disadvantage.
Does an employee have to tell me if they are vaccinated or not?
Employers can ask workers if they have been vaccinated but workers are not legally obliged to say if they have been vaccinated or why they are unable to be vaccinated or choose not.
If a person does not tell you what their vaccination status is, you may assume that person is unvaccinated, but you should first inform workers of this assumption.
If employees have consented, the MoH can inform employers whether workers in certain frontline groups (Groups 1 and 2) have been vaccinated.
As always, you must protect employee's personal information. You cannot share anyone's vaccination status (including with other workers) without consent.
Can I fire someone for not getting vaccinated?
Unless your workplace is one of those covered by the COVID-19 Public Health Response (Vaccinations) Order 2021, then probably not (even then, the law has not been tested on this).
Government advice says: “Employers and employees may agree to a negotiated end of employment, but individual dismissals are unlikely to be justifiable in almost all cases, based on current circumstances.”
It’s been over a year since COVID-19 reached New Zealand and we have been operating without a vaccine until now. This may undermine an employer’s argument that it's now not safe to operate your business without all workers being vaccinated.
As with any contested dismissal, your employee(s) may choose to bring a personal grievance against the business, which could be costly and time-consuming.
Can I require vaccination as a condition for a new employee?
Employers are able to require vaccination as a condition for new employees, but this must be “reasonable for the role”.
Can I offer COVID-19 vaccinations at my workplace?
As part of the vaccine rollout, some businesses may be able to offer workplace vaccinations. The Ministry of Health is focussing on organisations with larger workforces, but there are some circumstances where smaller businesses may be eligible for workplace vaccinations, e.g. if you have high numbers of Māori, Pasifika or ethnic populations, or a workforce that’s harder to reach.
To find out more about eligibility criteria and how to register your interest, visit the MoH website.
Can I provide rewards and incentives to employees to get vaccinated?
There are a few legal risks with providing rewards and incentives to employees for getting vaccinated.
The Employment Relations Act and Human Rights Act both provide protection for workers against discrimination on the grounds of religious belief and disability. Therefore it's unlawful to provide less-favourable terms of employment or conditions of work to those employees who do not get vaccinated. Employers are also required to accommodate any employee's religious beliefs or disability.
So while it may be well-intentioned to provide rewards and incentives to employees, MyHR suggests encouraging employees to get vaccinated using other means, e.g. by providing flexible working arrangements that allows them to do so.
I'm a supplier and my customers have told me that they require all my workers to be vaccinated. What do I do?
There are no easy options, unfortunately. Your choices are:
- Follow your employment law obligations and risk upsetting your customer or losing the contract.
- Do the illegal employment law thing to keep the contract, but risk your employees coming back and raising personal grievances.
- Conduct a health and safety risk-assessment to see whether, on the basis of the work you do (and not the customer's requirements), you can justify using vaccine-status as a tool for managing the risk that COVID-19 presents at your workplace.
You should seek professional advice before making any move.
What should I do if an employee is spreading false or misleading information about vaccinations?
Getting vaccinated is a personal choice, but employers should do all they can to support employees to make decisions that are based on facts.
Do your best to source and share accurate, reliable information regarding COVID-19 vaccines and the rollout in NZ with your staff.
If someone is sharing false or misleading information, such as leaflets, publications or websites, report it to CERT NZ. You can also report false or misleading social media posts or information to the respective platform e.g. Facebook, Twitter etc.
You may wish to deal with people spreading misleading information head on, but be aware they likely believe the falsehoods are true and could get defensive. It may be better to take a softer approach by talking to them privately, acknowledging their concerns, and searching for common ground.
We recommend talking to your staff about COVID-19 vaccinations. Read the information on the government websites and share information with your team members.
Make vaccination as easy as possible for your people.
However, in most circumstances, you won't be able to force anyone to be vaccinated. While the government information may make it seem like there is some scope, this isn’t well backed up by the details, and lawyers we have consulted with have been pretty clear that there are various statutes (e.g. the Bill of Rights, Privacy Act, Human Rights Act) that protect people’s right to choose.
The consultation and support approach is the best way. Remember that all discussions about COVID-19 vaccination must be fair and reasonable and done in good faith.
If you have any questions or need advice about how your business can best support employees with COVID-19 vaccinations, please don't hesitate to contact MyHR.