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COVID-19 Vaccine Q&A

Can an employer make vaccination mandatory?

A vaccination is a medical condition under the New Zealand Bill of Rights Act, and that requires informed consent and so, mandatory vaccination cannot occur without a law change, unless it can be proven that non vaccination proves a real and imminent health threat in a high-risk working environment.

In other words, an employer could encourage existing employees to be vaccinated, and may be entitled to request proof of this in high risk sectors but could not make it mandatory.

If you are a high-risk workplace, it may be reasonable to have mandatory vaccinations to ensure you are providing a healthy & safe workplace. High risk workplaces are where staff have a high probability of contact with COVID-19 or a significant risk of spreading infection to vulnerable people, such as border staff, frontline healthcare staff, and aircrew.

Can I make vaccination mandatory for any new employee to the company?

If mandatory vaccination is considered a fair condition of employment, and stays within the bounds of the Human Rights Act, employers may make proof of vaccination a term of employment for new employees.

The major grounds of discrimination under the Human Rights Act consider religious beliefs and medical conditions that would prevent the employee from being vaccinated.

Can I force my employees to be vaccinated?

No. Employers cannot require an employee to be vaccinated. However, employers can require a specific role be performed by a vaccinated person. Employers must have first completed a health and safety risk assessment to support such a requirement, and must do this assessment in collaboration with workers, unions and other representatives.

Can I dismiss my employee if they refuse to be vaccinated or refuse to give me proof of vaccination?

An employer is unlikely to be able to dismiss an existing employee who chooses not to be vaccinated unless the employee works in a high-risk area and there is a real and imminent health and safety risk.

The employer would also need to explore all reasonable alternatives to dismissal such as allowing the employee to work from home or in another area, or on alternative duties, for a period.

We recommend consulting with legal advice before starting a process to address these risks.

Can I ask my employees if they have been vaccinated?

Employers can ask workers if they have been vaccinated. If employees do not tell employers what their vaccination status is, employers may assume workers are unvaccinated, but should first inform employees of this assumption. Employers must protect personal information about vaccination status and cannot share it (including with other workers) without a worker’s consent.

Does an employee have to tell their employer if they are vaccinated?

Workers do not have to tell their employer if they have been vaccinated or why they are unable or choose not to be vaccinated. If workers have consented, the Ministry of Health can inform employers whether Group 1 and Group 2 workers have been vaccinated (Border and MIQ and the people they live with as well as Frontline workers and those living in high-risk settings).

If there’s a cost for vaccination who should pay?

If vaccination is a condition of employment (new employees or high-risk work functions) then, if there is a cost to the employee for being vaccinated, the employer should refund any associated costs.

Obviously, as with the current flu jab, employers might consider offering all employees reimbursement for any costs associated with having the COVID-19 vaccination as a benefit of employment. This would and could not be a mandatory requirement but would lower the barrier for some employees and encourage vaccination to help ensure a healthy workforce.

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