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With the roll out of the COVID-19 vaccination well underway in New Zealand, many employers are asking whether they can require employees to be vaccinated. With at least five workplace laws impacting this issue, the short answer is that employers will need to take a risk based approach to determine what is right for their business, and then take steps to implement their strategy including by educating and consulting with workers on this.

We answer some of the Frequently Asked Questions (FAQs) around this issue below:

1. What is the relevant law?

There are many!  The Bill of Rights Act 1990, Human Rights Act 1993, Employment Relations Act 2000, Health and Safety at Work Act 2015 and Privacy Act 2020 are all relevant to this issue.

2. What are the key considerations?

The nature of the employer’s business, and the people, including customers and other employees, that employees are likely to come into contact with are key considerations in determining the right approach to take vaccination and whether this can be required of particular roles. WorkSafe provides helpful guidance on whether a business is likely to be “at higher risk” and also sets out who would be a “vulnerable or at higher risk” person.

3. Can we require existing employees to get vaccinated?

In short, employers cannot require existing employees to get vaccinated unless there is a provision in their current employment agreement, and it is reasonable considering the specific role and context.

Employers can require that a role needs to be performed by a vaccinated person, provided a risk assessment justifies this requirement.

Employers can also strongly encourage employees to get vaccinated, and may educate employees on this and allow paid time off for vaccination, which is a popular approach.

4. What is a risk assessment?

The Health and Safety at Work Act 2015 (HSWA) requires employers to eliminate or minimise risks to health and safety at work, so far as reasonably practicable. A risk assessment will be conducted for each role to determine the likelihood of the risk occurring and determining the potential harm.

The outcome of the risk assessment will help employers to put measures in place to eliminate or minimise the risk of infection for each role.

5. Can we ask job applicants if they are vaccinated or intend to get vaccinated?

This will depend on how relevant vaccination is to the particular role, and caution taken to avoid unlawful discrimination.  For example, employers will need to consider whether there are ways to accommodate applicants without “unreasonable disruption” to their business, where applicants are not vaccinated due to a disability or religious and ethical beliefs.

In some cases, it may be reasonable that an employer cannot offer the job to an unvaccinated applicant due to the nature of the role.

6. What happens if employees refuse to get vaccinated?

Employers need to consider what is reasonable in the circumstances. For existing employees, unless not being vaccinated will pose a health and safety risk to themselves and others, the employee can likely resist any proposed changes to their employment, including the requirement to be vaccinated.

If a risk assessment deems that the specific position requires a vaccinated person to perform the role, the employer will need to consult with the employee to work out whether there are any suitable alternatives to this before determining what other action may be appropriate.

7. How can we introduce mandatory vaccinations?

Employers who require compulsory vaccination will need to prepare and consult on a policy in respect of the same, and ensure that any offers of employment are clear about the requirement for vaccination.

Need help?

Our team is well placed to offer any guidance and support around this topic and can assist you with determining what approach to vaccination is right for your business.

Disclaimer: We remind you that while this article provides commentary on employment law, health and safety and immigration topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.