COVID-19 and the workplace: New Zealand

An employer should only ask an employee or contractor about their vaccination status if the employer has a legitimate reason for requesting this information. This would include for example if a role performed by an employee or contractor needs to be performed by a vaccinated person, or as part of an employer’s efforts to understand the risk profile of its workforce. 

It is important to note that even if there is a good reason to ask a person about their vaccination status, that person has the right to decline to provide this information. Where this occurs, the employer may need to proceed on the assumption that the person is unvaccinated.

Everyone has the right to make their own decision about whether to receive the COVID-19 vaccine. 

However, an employer may in limited circumstances require that certain work or roles only be performed by vaccinated persons. These circumstances include where:

• The work is the subject of a Government order which requires a person undertaking that work to be vaccinated
• The role requires attendance on a client or third-party site, and the client/third party has restricted access to vaccinated persons
• The employer, has undertaken a risk assessment which supports the work or role only being performed by vaccinated persons.

All employers should undertake a risk assessment which assesses relevant risk factors and the potential control measures that could be put in place to minimise any identified risks.

The checklist provided below is a guide for employers to use in undertaking a risk assessment. This is simply an indication of the types of questions that should be considered by employers as the risk assessment should be specific to your business.

When introducing a vaccination policy, employers are advised to: 

• First undertake (and record) their own site-specific risk assessments in line with the guidance above
• Circulate the draft risk assessment to workers, along with a draft vaccination policy to workers
• Consider and respond to any questions and feedback from workers
• Make any necessary changes and then implement the final vaccination policy.

Employers may be able to introduce control measures that involve differing treatment between vaccinated and unvaccinated workers if this is supported by the employer’s risk assessment. Examples of such control measures include (but are not limited to) requiring unvaccinated staff to work from home, to wear masks or other PPE while in the workplace, and/or to submit to regular COVID-19 testing.

The Human Rights Act 1993 protects persons from discrimination on various grounds, including where someone suffers from a health condition or has a religious belief.

If the employer has introduced a vaccination requirement that could impact upon persons who are unable to be vaccinated for a reason protected by the Human Rights Act, the employer will need to consider if there are reasonable accommodations that will allow an exception to be made for such a person. It would only be if such accommodations are not reasonably practicable, and/or if there would still be an unreasonable health and safety risk, that the employer could refuse to give work to such a person.

If an employee cannot perform their role due to being unvaccinated and cannot be redeployed into another role which does not require vaccination, the employer may need to consider dismissal. Where this is the case, the employee should be given a full opportunity to seek independent advice and to provide a response before any decision about dismissal is made.

A contractor may also be excluded or terminated if their work requires them to be vaccinated. While the process of terminating a contractor’s engagement will not be as extensive as is required for an employee, it is still good practice to consult with the contractor before confirming a final decision to end their engagement.

If an employer needs to understand the vaccination status of its workforce in order to implement any COVID-19 control measures, or because vaccination is a requirement for certain roles or work to be performed, the employer may prepare a vaccination register.

Because a person’s vaccine status is personal information regulated by the Privacy Act 2020, such information needs to be held by an employer in a secure way, and can only be used for the purpose for which it is collected (i.e. ensuring the health and safety of staff and other persons who interact with staff and/or attend the workplace). The purpose of the information collected should also be clearly set out for workers when they are asked to provide confirmation/evidence of their vaccination status.

Information about a person’s vaccination status should only be held for as long as necessary. Once the employer no longer requires information about vaccination status, this information should be destroyed in a secure and safe manner.

If an employer requires certain roles to be performed by vaccinated persons without good reason, there will be a risk of legal claims from unvaccinated employees who are adversely impacted by this requirement including for example personal grievances for unjustified disadvantage and dismissal, or breach of contract. Discrimination claims may also be raised by persons who are unable to be vaccinated due to a reason protected by the Human Rights Act 1993. 

Although contractors or non-employees will not be able to raise employment claims in respect of vaccination issues, they can still pursue a claim if they feel have been discriminated against in breach of the Human Rights Act 1993.