COVID-19 vaccinations and employment law

Sylvie Thrush Marsh, Head of Platinum Services
By Sylvie Thrush Marsh, Head of Platinum Services

New Zealand's vaccination programme is well underway, and with the Delta variant of COVID-19 circulating in Australasia, vaccinations are very much front of mind. Employers are right to ask questions about whether the COVID-19 vaccine can be a tool to keep staff safe and ensure business continuity.

This blog post takes a look at the latest advice regarding making COVID-19 vaccines mandatory in workplaces, what employers can and can't do, and practical steps to take to make sure your organisation is prepared for 2022 and beyond.

This is a very new area of employment practice, and things could change due to new government guidance or case law precedent, so employers will need to stay on top of developments and be prepared to adapt.

Before we go further, don’t overlook the mental health impacts of the COVID-19 pandemic, lockdowns, and people’s vaccination concerns. It’s normal for people to have mixed emotions, feel stressed, and for this to fluctuate or change over time.

If your business doesn’t have an Employee Assistance Programme (EAP) for team members, you should seriously consider offering these services to help employees deal with problems that might impact their health, wellbeing, and job performance.

If anyone is struggling, they can call or text 1737, at any time day or night and talk to (or text with) a trained counsellor or peer support worker. The service is completely free.

This information is correct as of 16 December 2021.

Requiring employees to get the COVID-19 vaccination

First up, there are some fundamental rights and responsibilities to balance for all employers who are considering making vaccination compulsory. These principles frame the discussion.

Firstly, under the Bill of Rights Act 1990, everybody has the right to refuse to undergo medical treatment, whether that is vaccination, surgery, or a prescription recommended by a doctor. 

Balancing this basic right, is the obligation for employers and employees to proactively identify and manage workplace health and safety risks under the Health and Safety at Work Act. 

Then there are employers’ rights under the Employment Relations Act to manage their operations and workforce fairly and reasonably so they can function effectively.

Businesses covered by the government vaccinations order

Now, if work in your organisation is covered by the COVID-19 Public Health Response (Vaccinations) Order 2021, then you can rightfully require workers who conduct this work to be vaccinated.

Under the order, you can also ask employees about their vaccination status, store this information, and manage it appropriately.

The order covers a range of workplaces and employees, e.g. workers in the education and health and disability sectors, prisons, NZ Police and Defence Forces, managed quarantine and isolation facilities, certain workers at airports and seaports, aircrew members, and people handling “affected items”.

Find out which roles are covered by the vaccinations order at the Ministry of Health (MoH) website.

Businesses covered by the My Vaccine Pass mandate

The government has also mandated vaccination for all workers at businesses that must use My Vaccine Passes to operate, or operate with fewer restrictions, under the COVID-19 Protection Framework.

The mandate applies to food and drink services (excluding businesses operating solely as takeaways), events, close-proximity businesses (hairdressers, beauty and tattoo parlours, nail salons etc.), gyms and indoor exercise facilities, and on-site tertiary education at the Red level.

The mandate applies even if the business chooses not to require My Vaccine Passes from their customers or clients.

Workers need to be fully vaccinated by 17 January 2022 to continue working.

Find out more at Business.govt.nz.

Businesses not covered by the order or mandate

For businesses not covered by the vaccination order or My Vaccine Pass mandate, there is a different process to follow in order to decide if certain work can only be done by vaccinated workers.

Firstly, you need to conduct a thorough risk assessment (this is not a new tool - it’s used in lots of other contexts) with 2 broad considerations:

  1. The likelihood of workers being exposed to a risk, in this case catching or transmitting COVID-19.
  2. Potential consequences arising from that exposure risk, i.e..risks to their own health and that of others.

The government has developed a vaccination assessment tool to help with the risk assessment process. Or you can use fit-for-purpose assessment method that suits your business, which should be done with input from employees (and their representatives). It may also help to get a health and safety professional to provide advice.

In completing the risk assessment, you need to look at the full range of tools to manage the risk, of which vaccinations are only one. Some of the other things are personal protective equipment (PPE), physical distancing, handwashing, people staying at home if sick etc. (get more information about public health guidelines for businesses at the MoH website).

Where there is either high risk of transmission or serious consequences if the disease is caught, and you need vaccination to help effectively manage the risk (bear in mind, too, that the current vaccines only reduce rather than eliminate the ability for people to transmit the virus), then mandating work be done by vaccinated workers is likely going to be appropriate.

Once you get to this stage, this is where the requisite consultation process with all your employees kicks in. Be sure to follow these steps:

  1. Write a policy.
  2. Present it to your people and other stakeholders, eg. union representatives, your health and safety committee or reps.
  3. Invite feedback from your team.
  4. Genuinely consider the feedback and make changes, if necessary.
  5. Confirm and implement the policy.

Employers options if employees decline to get vaccinated

Okay, so you’ve completed a risk assessment, decided that requiring certain work is only done by vaccinated workers, consulted with your team, and put a policy in place, what do you do if one or more workers decline to get vaccinated?

Explore the issue

The first step is investigating, in good faith, why someone is declining. They may have an underlying health condition or allergy, or are immunocompromised and cannot safely get the vaccine on medical grounds. So if the business makes vaccination compulsory it could be discriminatory not to take this into account.

A religious or cultural objection is also likely to be considered a legitimate ground for refusing to get vaccinated and therefore grounds for discrimination, based on current law.

There may be other practical barriers, e.g. the employee needs time off work or transport to go and get the vaccine. You could help here by supporting them to go and get vaccinated.

Redeployment options

Once you have explored why the employee refuses to be vaccinated and they remain resolute, you should then look at options for accommodating the person by moving them to other work or redeploying them to another role. This will be especially important if they are declining for religious or health reasons.

If not, are there other ways to manage the COVID-19 risk that don’t involve getting vaccinated?

This is unlikely, given the assessment and consultation process you’ve already undertaken to get to this point.

Termination

If the person’s work is covered by the company vaccine policy (or the government vaccination order) and you’ve tried but were unable to find them other work, then you can consider termination. 

Again, be sure you follow the correct termination process, as you would with any other termination:

  • Ensure all your correspondence is documented in writing.
  • Advise the employee of the consequences (outlined in the policy) of failing to get vaccinated.
  • Consider whether there are other roles for them.
  • Explain the outcomes of that consideration process.
  • Propose termination.
  • Give them time to respond with feedback and genuinely consider it.
  • Decide and communicate the outcome.

Learn more about the termination process.

Latest case law backs this up

We now have a case that backs up this rationale and process.

In September, the Employment Relations Authority (ERA) ruled that the New Zealand Customs Service was justified in dismissing a front-line border protection officer who refused to get vaccinated. The work was covered by the COVID-19 Public Health Response (Vaccinations) Order 2021 and Customs had fairly assessed the role in requiring vaccination to meet health and safety obligations and manage risk.

Customs were found to have followed fair process, giving the employee paid time off to consider the situation, looked for other roles that could be suitable but found none, then proposed termination and consulted with the person.

Other issues to consider

Just a word about being aware of privacy and confidentiality issues.

Your workers don’t have to tell you if they have been vaccinated or not. If they choose not to get vaccinated, they aren’t obligated to tell you why.

If a worker doesn’t disclose their vaccination status (and you need them to have the vaccine to complete their duties), you can treat them as unvaccinated, but you’ll have to tell them that’s what you’re doing.

You can’t share information about your employee’s vaccination status with anyone, unless you have their permission to do so, or there’s an exception under the Privacy Act.

Get answers to more questions about vaccinations and your workforce.

Supporting employees to get vaccinated

If you conclude that there is no requirement to have vaccinated workers in all or individual roles, the best advice is to support your people to get vaccinated.

There are many ways to do this, e.g. allowing them time off to get vaccinated, talking to them about their entitlements if they need time off or feel unwell after getting the vaccine, or talking to them about the safety of the vaccine, and how getting vaccinated will help create a safe workplace for everyone. Remember to listen to their concerns and respect their privacy.

Certain, large workplaces are also able to provide vaccinations onsite. Find out if your business qualifies at the MoH website.