Covid-19 vaccinations in the workplace

COVID-19 vaccines will play a critical role in protecting the health and wellbeing of people in New Zealand which will enable our social, economic, and cultural recovery.
Workplaces in New Zealand will be essential in making access to vaccines as easy as possible for all those employed in them – including employees and independent contractors. To help New Zealand’s COVID-19 Immunisation Programme succeed, the Government is recommending employers encourage and support their workforce (including part time, casual and independent contractors) to get vaccinated.

This could include:

  • facilitating on-site vaccinations
  • allowing workers to get vaccinated during work hours without loss of pay, and
  • providing workers with relevant and timely information from the Ministry of Health about vaccination and its benefits.

What are my responsibilities as an employer in relation to the Covid-19 vaccine?

The Health and Safety at Work Act 2015 states that employers have an obligation to ensure a safe workplace, as reasonably as they can, and vaccinations can be critical to this. Therefore, an employer must do what is reasonably practicable to reduce the likelihood of infection in the workplace.

As it is not mandatory, what can employers do to get their employees vaccinated?

Ideally, all the workforce would choose to be vaccinated to control the risk of infection, some may not, therefore a business must have additional health and safety plans in place to manage these circumstances.

Can an employer request its employees to be vaccinated?

The employer can request but cannot require an existing employee to be vaccinated.

If an employee refuses to be vaccinated, what can an employer do?

In relation to health and safety in the workplace, a PCBU (person conducting a business or undertaking) must ensure health and safety as far as reasonably practicable.

Given the current state of transmission in New Zealand, where workplaces have been able to operate safely without vaccinated staff, it will currently be hard to argue that a person being unvaccinated is a significant health and safety risk but that will depend on the industry and any further changes (such as borders opening).

The employer can ask employees whether they have been vaccinated for risk assessment purposes. If an employee declined to provide the information, the employer should proceed as though the employee has not been vaccinated but should first inform the employee of this assumption.

If workers in the workplace are not vaccinated, the PCBU should do a risk assessment to decide if further control measures are needed to reduce the risk of transmission. Alternative control measures could include (but are not limited to): lower risk duties or worksites for the worker; eliminating or limiting close or face to face interaction with others; working from home where possible; increased social distancing requirements; increased hygiene and cleaning practices; additional training and posters; temperature checks; and additional PPE.

If an employer believes on reasonable grounds that there is a real and imminent risk to health and safety which can only be adequately addressed by vaccine (this is only likely to be in very limited situations where close contact is unavoidable and PPE not wholly effective e.g. health care situations) the employer must consult with the employee and explore all reasonable alternatives and it will only be when all other options are exhausted, that termination of employment would be justifiable. The employer should take specific expert advice on the health and safety requirements, risk and employment implications.

If your employee refuses to be vaccinated, taking no further action to prevent infection in your workplace will not satisfy your legal health, safety, and wellbeing obligations.

Can I make vaccinations a condition of recruitment?

Employers can require vaccination as a condition for new employees, but only where this is reasonable for the role e.g. where the employer has identified real and imminent risk to an employee working without vaccination and has considered alternatives. This is only likely to be reasonable in limited circumstances such as nursing homes.
Employers need to be careful that they are not exposing themselves to discrimination claims by rejecting an employee based on the candidate’s decision to refuse vaccination. That decision could be based on a pre-existing medical condition or religious grounds. Given the current state of transmission in New Zealand, where workplaces have been able to operate safely without vaccinated staff, it will currently be hard to state that a person being unvaccinated is a significant health and safety risk unless the business is particularly high risk or there is a law change. However, when NZ’s borders reopen, this may create a different situation.

Can employees take leave when they get vaccinated?

If an employer is asking an employee to receive the vaccine, then the employee should be paid for the time it takes to get the vaccine. If the employer is encouraging employees to receive the vaccine, the employer should discuss time off work and whether the time will be paid with the employee and come to a mutual agreement. Employers should consider whether allowing paid time off work will help encourage staff to receive the vaccine.

Vaccination Policy – Our Recommendation.

Start now by thinking about factors specific to your particular workplace including:

  • What do your employment agreements include? Requiring a new employee’s agreement to be vaccinated as a condition of commencing employment is likely to be lawful in most circumstances, However, employers must exercise caution when deciding not to hire an employee whose refusal to be vaccinated is linked to a human right such as religion or disability.
  • What risks are you managing in your workplace by seeking to require vaccinations?
  • Are you providing a safe and healthy workplace if you don’t require vaccinations?
  • Are other steps being taken to achieve the same outcome of minimising the spread of the virus, such as physical distancing, mask wearing and/or sanitising?
  • Is it relevant what the prevalence of the virus is at the time vaccinations are being required?

Commence conversations with your employees about COVID-19 vaccinations as soon as possible. The consultation and support approach is the best way. Remember that all discussions about COVID-19 vaccination must be fair and reasonable and done in good faith.

Keep up to date with information that is provided on NZ government websites and think about where your business and workers fit in the vaccine rollout. Share information with your team.

Make vaccination as easy as possible for your people.

If your business is considering a vaccination policy for employees as part of your response to Covid-19, please feel free to contact us for advice specific to your situation.