With changes to alert levels across NZ, more people are beginning to move back into offices and workplaces. As a result, we’re getting a lot more queries on the topic of vaccination status for employees. This is still something of a grey area in terms of employment law, and employer-employee obligations. Here are a few things to consider:
Vaccination isn’t mandatory in most circumstances at this stage, so whether or not someone is vaccinated is still a personal choice. While employers can encourage employees to get vaccinated, and make it easier for them to do so, they need to respect the rights of individuals and the right to privacy.
Even asking employees to prove their vaccination status may be a breach of privacy in some cases. According to the Privacy Act, a person’s vaccination status is personal information, and generally an employee doesn’t need to disclose their vaccination status to a business (with some exceptions).
Health and Safety at Work Act
This is the key consideration for employers. A risk assessment should be conducted to identify roles in an employer’s business that are deemed high risk, as well as frontline roles. Once this is complete, employers must decide if that work can be performed by an unvaccinated employee. It may then be reasonable for an employer to ask if a worker is vaccinated, on the basis that the risk assessment has been conducted, and that the information will be collected and handled according to the Privacy Act. If a role can’t be done by an unvaccinated employee, employers need to explore options for redeploying those individuals within the organisation.
The above applies to any new employees being brought on board. At this stage, the only way you can include the requirement to vaccinate or proof of vaccination in employment agreements is if you’ve carried out the health and safety risk assessment and the role is considered to be one that can only be done by a vaccinated employee.
As we mentioned, the situation around vaccination rights is still evolving, with cases going before the courts over the next few weeks. At this stage, our advice is to keep the Privacy Act and Human Rights Act in mind when considering the implications of any decisions you make regarding your employees. The “fair and reasonable” test applies to all aspects of the employment relationship, and this is no exception.
For any advice around the vaccination and your workplace, get in touch with the team on 0800 476 347 or firstname.lastname@example.org