COVID-19: Vaccination in the workplace.

The Bill of Rights Act 1990 sets out that is the right of every New Zealander to refuse to undergo medical treatment. However, there are some exceptions to this right, including in relation to public health measures.

COVID-19 has created various issues for businesses to navigate.

With the introduction of the COVID-19 vaccine and the government announcement saying that the vaccine will not be mandatory, this means that, for the most part, vaccination of staff will be yet another issue for businesses to manage during this global pandemic.

General information about the vaccine.

  • Two doses are required.
  • Vaccination is free.
  • Everyone over the age of 16 is eligible for the vaccination, regardless of visa status.
  • Generally speaking, vaccines cannot be requested – the vaccine programme is rolled out in accordance with the government’s policy, although there will be exceptions to this policy.
  • There may be some individuals who should seek medical advice before being vaccinated (e.g. pregnant women, breast-feeding women, individuals receiving cancer treatment, individuals on blood thinning medication).
  • An individual must give their informed consent in order to receive the vaccine.
  • Consent will be recorded in the COVID Immunisation Register (CIR).

Can I require existing employees to be vaccinated?

For most businesses in New Zealand, the risk of staff contracting COVID-19 is currently low. New Zealand does not currently have any community transmission of COVID-19 and the country is well stocked with PPE gear and masks, which are reasonably effective mitigation strategies. Therefore, it would be difficult for most businesses to argue that vaccination of all existing employees is necessary from a health and safety perspective.

However, it may be possible for some businesses to justify full vaccination of staff in order for the business to comply with their health and safety obligations – for example, businesses who have staff working on the front-line in health or elder care, or in airports.

If employers did want to introduce a health and safety policy that requires compulsory vaccination, employers should obtain legal advice to ensure any roll-out of such policy is lawful. Employers would need to consult with their staff and consider any feedback before implementing the policy. Any objections to a compulsory vaccination policy would need to be assessed on a case-by-case basis. Objections could be due to religious, philosophical, or medical grounds. Dismissal for refusing to be vaccinated may be justified at the end of a process, although an employer would have to show that its actions were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal occurred.

Can I require proof of vaccination as a requirement for employment?

It may be possible that employers could make providing proof of vaccination a requirement of getting a job. However, this may need to be subject to possible exceptions such as religious or medical grounds.

Can I require new employees to be vaccinated?

Employers may be able to require vaccination as a condition for new employees, but this must be reasonable for the role. Factors outside the role, such as the current and projected risk of COVID-19 in New Zealand and other mitigating factors would also need to be assessed and taken into account in determining whether you can require new employees to be vaccinated against COVID-19.

What is best practice around employees and vaccinations?

  • Good faith: All discussions with employees around vaccinations must be undertaken lawfully and in accordance with good faith.
  • Communicate: One of the biggest learnings from 2020 was that communication with your team is key. When the vaccine roll-out hits the general public, uncertainty and fear will likely spike. Communication and education can help your team feel safe and secure. COVID19.govt.nz is an authorised government website with education and information that could be provided to staff.
  • Policy: Decide what your business policy is around vaccinations. Obtain legal advice to ensure any intended policy and roll-out is lawful.
  • Support: The government has asked employers to support the vaccination programme. You may wish to:
    • Provide employees with paid time off to be vaccinated.
    • Actively encourage and support employees to be vaccinated.
    • Reiterate what alternative mitigation steps you are taking, in order to keep your staff safe (e.g. PPE, hygiene protocols, face masks).
  • Health and safety: Keep in mind that your obligation is around health and safety. You are required to take all reasonable practicable steps to ensure the health and safety of your workers. What this means in practice will depend on a range of factors.

 

Given the complexity surrounding vaccination in the workplace, we would recommend that if you have any queries or concerns, you get in touch with one of our Employment Team to discuss.

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