‘No jab, no job?’ Employment law queries and the Covid-19 vaccination

12 November 2021

 

The topic on everyone’s minds at the moment is whether you can require your employees to be vaccinated against COVID-19. This article answers some of the frequently asked questions. It is likely this advice will change once we have further information from the government in relation to the vaccine passports.

Mandatory vaccination for certain roles

Public Health Orders make it mandatory for anyone covered by the Order to be vaccinated. At present, this includes:

  • MIQ workers
  • most high risk border roles
  • healthcare workers
  • teachers and
  • prison officers.

 

It will soon cover all workers and businesses where customers of the business need to show a COVID-19 vaccination certificate.

The government is yet to formalise where the certificate is required for entry but it is likely to include restaurants, gyms and venues for events/concerts. We understand, anecdotally, that some sporting clubs are considering making vaccination a condition of participation in club activities.

If your employees work in a school, such as a sports coach (but aren’t teachers) then they will need to be vaccinated. Workers need to be vaccinated if they may have contact with children or students while carrying out the work or will be present at the school when children or students are present.

The Orders specify the dates the employees are required to be vaccinated and they must show proof of the vaccine (this could be My Covid Record). For education and health and disability staff, the first dose has to be received by midnight on 15 November 2021 and the second dose by 1 January 2022.

What happens if an employee refuses to be vaccinated within the timeframe specified in the Order?

Any employee who is covered by the Order who refuses to be vaccinated by the specified dates cannot be at work. First, you will need to consult with them to establish if they have a medical exemption to the vaccine, or to discuss any suitable redeployment options where the employee can move to an alternative role where vaccination is not required.

If there are no alternative roles, and the employee will not be vaccinated, then the employer will need to give formal notice of termination of employment.

The government has indicated that those who are non-vaccinated will be given a four week notice period to get vaccinated before their employment is terminated.

Employers and employees are reminded that the duty of good faith continues to exist at all stages of the employment relationship.

Vaccination for non-mandated roles

If your organisation is not covered by the Public Health Order, you will need to complete a health and safety risk assessment on the role and work done to determine whether workers need to be vaccinated.

The government will introduce a risk assessment process for employers to follow when deciding whether vaccination should be required. In the meantime, businesses should consider the risk factors on WorkSafe’s website

A business may determine that, following completion of the health and safety assessment, some roles do require mandatory vaccination.

Can employers amend existing staff employment agreements to require vaccination?

The general rule is that an employment agreement can only be varied by agreement between employer and employee. So the answer is “No”.

However, following proper consultation with employees, an employer is able to introduce policies. Arguably a policy requiring employees to disclose their vaccination status is not a variation of the employment agreement. Many employment agreements contain a clause stating that the employee must comply with existing and future workplace policies

The Health and Safety at Work Act 2015 requires employees to cooperate with “any reasonable policy” relating to health and safety.

Can an employer ask prospective employees if they’re vaccinated?

You can only ask about the vaccination status of someone if you have a lawful purpose for that information. Vaccination status is personal information and is protected by the Privacy Act 2020. However if you have completed a risk assessment of the role and determined the person needs to be vaccinated, then seeking that information is for a lawful purpose.

Can employment agreements for new employees contain a clause requiring vaccination?

Yes, and the clause should require the new employee to show proof of their vaccination status.

If the information in this article has raised some questions for you or you would like any employment advice, please contact us through the Nuku Ora Shared Services: business-support@nukuora.org.nz

BSS GS Legal Speak