Global Overview of Workplace Vaccination.

A sharp upsurge in infections due to the Delta variant and a slowdown in vaccinations have pushed governments around the world to make COVID-19 jabs mandatory for health workers and other high-risk groups.

A growing number of countries now require proof of vaccination, or a negative Covid test to enter hospitality business or large public events – in particular, many indoor events mandate evidence of vaccination.

New York City for example, will become the first major U.S. city to require, from mid-September, proof of vaccination for customers and staff to be at restaurants, gyms and other indoor businesses as the US enters a new phase of battling the Delta Covid variant.

Can I make vaccination mandatory for employees?

In New Zealand, getting the Covid-19 vaccine is voluntary for most people. However, anyone who works in a high-risk border or managed isolation and quarantine (MIQ) setting legally must be vaccinated.

In addition to this, businesses providing services to potentially high-risk areas having conducted proper health and safety risk assessments and concluded that the role/tasks should only be performed by a vaccinated worker may require vaccination.

This is because of the health & safety risk whilst performing the role and the potential consequences of that risk, and holds true in situations where the use of PPE or extended distancing between workers is not viable.

Not all essential service providers require mandatory vaccination.

Be aware that just because an employer is providing services to essential workers, it does not automatically put the roles into the mandatory vaccination category i.e., a number of essential work activities do not present increased risk not manageable with PPE, etc.

This means that the focus is strictly on what is required to perform the role just as you would for any role e.g., a truck driver – which requires a specific licence.

WorkSafe has useful information and tools to assist with assessing the risk to ascertain if a specific role needs to be performed by a vaccinated worker.

Management of employee personal health records regarding vaccination

Vaccinated status or otherwise is personal information and the Privacy Act states that it should only be requested where necessary. It is not necessary if the work has not been assessed from a health and safety perspective.

If roles within your business meet the health and safety threshold, you can ask employees if they have been vaccinated but they do not have to tell you if they have, or why they chose not to.

The reality is that most employers do not have an environment that meets the very limited circumstances identified by the Government as justifying mandatory vaccination, and you could potentially be exposing your business to Privacy Act, discrimination, or disadvantage claims by insisting on having this information.

Importantly, you may not discriminate against employees who choose not to get the vaccination – there may be religious or medical reasons why a person cannot be vaccinated.

Can my main contractor or client mandate that my workers are vaccinated, wear face coverings and record their attendance?

Vaccinations

As outlined above, if a particular role meets the health and safety threshold in terms of it being high risk and that vaccination/mask-wearing is a genuine occupational requirement then yes, you can mandate this for your role. Clients to whom you contract with can pretty much put in place whatever rules they want to, and your business needs to establish ways of meeting their requirements.

Roles that might have a genuine occupational requirement for vaccination include:

  • Front line workers – border/MIQ staff, medical professionals, supermarket workers etc
  • Aged care facility workers – due to the high-risk level for aged care residents if they contract Covid-19.
  • People working with children who are below the vaccination age.

Other roles which could also be considered as having a genuine occupational requirement include:

  • Hospitality/café workers who have face to face contact with customers, but not necessarily in a high-risk environment such as at the airport.
  • Back of house roles (e.g. administration) who work in higher-risk companies, but not actually in the high-risk area themselves.
  • Customer-facing roles, particularly in high traffic areas such as shopping malls.
  • Construction sites where there are high numbers of personnel in a confined area.

Employers need to assess the risk assess each job and decide if mandatory vaccination can be justified due to occupational requirements.

Recording attendance

At Alert Levels 1 and 2, businesses are only required to display a NZ COVID Tracer QR code or have an alternative way people can record their visit, but it is recommended that all businesses implement steps to encourage people to record their visit.

At Alert Levels 3 and 4, most businesses that are open must have systems and processes in place to ensure, as far as is reasonably practicable, that everyone aged 12 years or older who enters their workplace records their visit. This means more than just displaying the QR code, as required at all alert levels. It requires the person in charge of the business or service to have systems and processes in place to ensure that people do check in.

Can I ask candidates whether they are vaccinated during a job interview?

Businesses can only ask candidates if they are vaccinated when this is justified by the requirements of the role. For example, if a business decides, following a COVID-19 exposure risk assessment, that certain work cannot be performed by an unvaccinated worker, it may be reasonable to ask about an applicant’s vaccination status. This information will need to be collected and handled according to the Privacy Act.

What can I do if my employee in a high-risk role refuses to be vaccinated or wear a mask?

If employees are doing work that can only be done by a vaccinated worker, but are not vaccinated, in the first instance employers will need to address any practical barriers to accessing vaccination (e.g., checking if travel or time off work is needed). There are a range of other options that employers concerned should think about before considering termination such as: changing work arrangements or duties, taking leave, and restructuring work. Obviously, employers should take care to be fair and reasonable in their response, and work through processes with employees in good faith before deciding on any outcome.

Fortunately, the acceptance and understanding within the New Zealand community that vaccination is a reasonable and responsible step we can all take to protect the health and Safety of ourselves, and others seems to be gathering momentum and increasing.

Summary of advice to employers around mandatory vaccination

  • Before requiring mandatory vaccinations of staff – assess the risk, it is likely that it can be solved via PPE/risk reduction measures. In fact, there are very few roles/industries where the risk is so great as to require mandatory vaccinations to keep employment. Therefore, dismissals resulting from lack of vaccinations is in the majority of cases not really an option.
  • Consulting and communicating with staff and ensuring the Privacy Act is maintained throughout the consultation.
  • Seeking feedback from staff about what you are considering – perhaps introducing a voluntary register to begin with.
  • If clients request mandatory vaccinations of your staff who attend their worksites – ask the client for further information so that you can understand their risk assessment which requires vaccination information as a condition of contracting services.

As this is a rapidly changing area, if you have any questions about vaccinations and employment or you just need some general HR guidance and expert advice, please give us a call, we would be very happy to assist you.