Can New Zealand employers mandate staff vaccination?

Content Summary

Susan Muldowney | November 2021

This article was current at the time of publication.

As more workers begin their commute back to the office, protecting the health and safety of employees – and clients – raises questions for employers. The toughest of all? Can you demand employees be vaccinated?

To help answer this question for public practitioners, CPA Australia is working with law firm Duncan Cotterill in Auckland to develop COVID-19 vaccination policies. 

The policies will set out employers’ health and safety obligations and their legal requirements when considering a vaccination mandate for employees.

Partner at Duncan Cotterill, Jessie Lapthorne, says the legality of employee vaccine mandates continues to be tested and that legal certainty currently applies only to those working under the COVID-19 Public Health Response (Vaccinations) Order 2021, which includes most border workers and many employed in the healthcare and education sectors. 

“Outside of that, any vaccination mandate put in place by employers will need to be based on a health risk assessment completed for their organisation,” Lapthorne says. 

Assessing the risks

There are two aspects to a risk assessment – the likelihood of exposure to the virus at your office and what may happen should exposure occur. 

Any risk assessment will probably require an employee survey to be undertaken. Lapthorne says one of the first questions should be whether employees are willing to share their vaccination status. 

Of course, it may be that all your workers have been vaccinated so a mandate may be unnecessary.

“A risk assessment also includes the types of work people are doing at your office,” Lapthorne says. 

“Are they performing work indoors in close proximity to others for long periods? Are you able to adhere to control measures like social distancing restrictions? 

“You then need to look at the potential health consequences if your office was exposed to COVID,” she adds. 

“For example, does your work involve regular contact with people who are at high risk of severe illness if they contract the virus? This may be a case if part of your practice [conducts] house visits to elderly clients.” 

You may also need to consider whether any of your employees have underlying medical conditions, either personally or within their “bubbles”, which could lead to greater health risks for people exposed to COVID.

Surveys of employees generally require asking about their personal circumstances although Lapthorne stresses they are not obliged to disclose such information. 

“But I think you’ll find that people who have concerns about their health or the circumstances of those in their ‘bubble’ will want you to be taking an approach that adequately protects them,” she says. 

“However, some may feel very strongly about maintaining privacy around their vaccination status and health conditions. It’s definitely a balancing act but all you can do is ask in a way that allows people to elect anonymously not to tell you – such as via a questionnaire – and then work with the information you have.”

Balancing health and human rights

Your risk assessment may justify mandating vaccinations, bearing in mind there are competing interests to weigh. 

“Employers have health and safety obligations but on the flip side there are discrimination issues to consider,” Lapthorne explains. 

“People may choose not to be vaccinated due to underlying health issues, which may be classified as a disability. As a result, any adverse actions taken toward them for not getting vaccinated could lead to a risk of discrimination claims. Likewise, if it’s a religious reason or any of the rights protected in the Human Rights Act 1993 there would potentially be some risk there.”

She notes that employers may consider reasonable adjustments to the roles of unvaccinated employees.

“As an example, it could be that unvaccinated employees no longer work directly with elderly or immunocompromised clients. But it can’t be a matter of no jab, no job.”

Safety at work

While vaccinations can help protect employees from COVID-19, safety measures are required for office environments depending on the government’s COVID-19 Alert Levels.

Businesses operating at Alert Level 2, for instance, must comply with the one-metre physical distancing rule for all workers in the office. 

While you should encourage all employees to wear face masks during Alert Level 2, the responsibility to wear them rests with employees, not you. 

WorkSafe New Zealand also recommends that you review the last time your ventilation or air-conditioning system was checked. If you’re not confident that it’s working efficiently, arrange for cleaning or maintenance.

“The level of control required is dependent on the scale of risks,” Lapthorne says. 

“Employers also need to introduce their own controls such as the spacing of desks or number of people allowed in the workplace based off the risk assessments they’ve carried out.”

Whatever measures you’re putting in place, it’s important to communicate with staff, she emphasises. 

“One of your survey questions might be, ‘Are you comfortable with a return to the workplace?’ and then make clear that you can accommodate social distancing requirements.

“A lot of responsibility rests with employers as people return to the office. We do know that the government is not going to mandate vaccines across the board, so it’s in the hands of employers to assess their businesses and office environments and the risks that are attached to them.”