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COVID19 Vaccinations within the Workplace
The following document focuses on employers’ and employees’ obligations in relation to the COVID-19 vaccination and the workplace. It is important to note from the outset that this is not legal advice and we have collated information from a range of best practise sources for your interest.
It is important to recognise that one size does not fit all; an employer must consider the practical and operational context before coming to a decision. In saying this, there are several factors that must be examined every time we review whether a business may require a vaccinated person to fulfil a particular role. Firstly, consultation is key. Employers should consult with their workforce every step of the way and nothing should come as a surprise. This upholds a good faith relationship with employees which is underpinned by the Employment Relations Act 2000.
Secondly, there are a number of Acts that are relevant to the discussion around requiring a position to have a vaccinated person carry it out. It is a matter of upholding all statutes while understanding which ones may be at the forefront of the situation at hand. This report will heavily reference the Health and Safety at Work Act 2015 (‘HSWA’) as it is most applicable to the questions that are answered below. Section 36 of the HSWA outlines that an employer has a primary duty of care to carry out work which does not put others at risk. Therefore, if an employer has conducted a thorough health and safety risk assessment, considering the likelihood of COVID-19 exposure and the potential of that exposure on others, then the employer may decide that particular positions may require vaccinated persons. Further detail around conducting a health and safety risk assessment is outlined below.
Lastly, we must not forget that this topic is very contentious and a constantly evolving landscape. The following recommendations may be obsolete if the government introduces new rules or legislation. As new developments come to light, here at EQ we will find practical solutions for businesses when dealing with vaccinations within the workplace.
Does an Employee need to disclose their vaccination status?
Generally, an employee does not need to disclose to their employer whether or not they have had a vaccination. However, a business can ask an employee about their vaccination status if particular work cannot be done by an unvaccinated employee. Following this, if an employee does not disclose whether or not they have been vaccinated, the employer can assume that the employee has not been vaccinated for the purpose of managing health and safety risks. Consultation is key and before any assumptions are made, an employer should inform its employee of the assumption they are about to make, and the outcome of this if the employee is not vaccinated or fails to disclose their vaccination status to the employer.
What if an Employee discloses their vaccination status to their employer?
A person’s vaccination status is personal information. Collecting, storing and sharing information about people’s vaccination status must be done in accordance with the Privacy Act 2020. If your employees choose to tell you about their vaccination status, you cannot share this information with anyone without their permission.
Can an Employer ask an Employee if they have had a vaccination?
An employer may ask an employee if they have been vaccinated but an employee does not have to confirm whether they have been vaccinated or their reasons associated with their decision. An employer cannot discriminate against an employee who chooses not to get vaccinated.
However, businesses may require certain positions to be vaccinated upon a health and safety risk assessment. If an employer requires a position within their company to be vaccinated, an employer may ask an employee who occupies that position if they have been vaccinated. Subsequently, if the employee refuses to inform the employer of their vaccination status and the position requires a vaccinated individual to perform the role, the employer may assume that the employee has not been vaccinated, upon consultation, and that they no longer meet the requirements of the position.
During the recruitment process
Under the Human Rights Act 1993, there must not be unlawful discrimination against a candidate. An employer may however ask a candidate/potential employee if they have been vaccinated if the company has conducted a health and safety risk assessment confirming that the position requires a vaccinated person to carry it out. Again, if the candidate refuses to inform the employer of their vaccination status, the employer may assume they have not been vaccinated and therefore do not meet the health and safety requirements of the position, and has the right to discontinue the candidate’s application on these grounds.
Can an Employer ask an Employee to get vaccinated?
An employer can only ask an employee to get vaccinated if the employer requires the individual in the particular role to be vaccinated if the company’s health and safety risk assessment revealed that vaccination is necessary for the role to be performed safely.
Can an Employer make vaccinations a requirement for new Employees?
An employer can introduce vaccination status into their employment agreements but this must be reasonable for the role. As mentioned above, that this is a health and safety requirement as a result of a company health and safety risk assessment.
If an Employee has not, or refuses to, have a vaccination, what is the Employer’s position if we have more lock-downs and / or more restrictions are placed on Employees that are not vaccinated?
At present, the information provided by the government sets out that an employee can refuse to have a vaccination if their work does not require it for health and safety reasons. Under the COVID-19 Public Health Response (Vaccinations) Order 2021 (‘the Order’), there is a duty placed on affected persons to not carry out certain work unless they are vaccinated. Affected persons means any person who belongs to a group in relation to quarantine facilities, managed isolation facilities, affected airports, affected ports, affected aircraft and affected items.
However, other industries have been requiring positions to have vaccinated people working in them, such as aged care facility workers. In these industries the risk has been seen to be much higher in comparison to other industries.
It is a possibility that there may be more restrictions placed on individuals who refuse to be vaccinated in the future. However, as an employer, there is an obligation under the Employment Relations Act 2000 to maintain a god faith relationship with all employees. The general practice thus far when dealing with employees in health and safety sensitive positions has been to act in good faith and seek ways that the business can support individuals. For example, working from home, change roles within the business etc. We recognise that it may not always be practical for a business to support individuals in such ways and then alternative approaches may need to be taken. It is important to consult with affected employees every step of the way.
This is a constantly evolving landscape and the information and recommendations provided today, may be obsolete tomorrow as the government releases new information.
What is the legal precedent around mandatory vaccinations in NZ currently?
Border workers brought cases against their employers at the beginning of 2021 when the vaccination rollout began and their jobs were threatened if they did not get vaccinated. However, in response to this, the government introduced the Order which made it mandatory for certain border workers to be vaccinated in order to carry out their role.
As New Zealand is still rolling out vaccinations, there is very little information on the ability for private sector employers to make vaccinations mandatory, other than in the circumstances stated above.
Who is classified as a ‘front-line worker’ that must be vaccinated in order to work?
Front line workers have been defined by the government as workers at border services, airports, ports and MIQ facilities. Under the Order, these workers have a duty to be vaccinated in order to carry out work, unless they fall under an exemption.
Although healthcare workers such as aged care facilities workers and hospital workers are considered front line workers, this is a different level to those workers at border services, airports, ports and MIQ facilities. Therefore, at present, healthcare workers are not required to be vaccinated in order to perform their role.
What is a health and safety risk assessment?
The following information has been sourced from WorkSafe New Zealand.
Apart from MIQ workers and government officials in high-risk border settings, businesses and services can require a specific role be performed by a vaccinated person, if you have done a health and safety risk assessment to support this.
A health and safety risk assessment requires focus to be placed on the role and not the worker performing it because you can’t require an individual to be vaccinated. If you think that a role in your business or service needs to be performed by a worker vaccinated against COVID-19, you need to assess the role’s exposure risk to the virus.
You must assess the risk in collaboration with your workers and their representatives. The WorkSafe website has general information about carrying out a risk assessment and this is also outlined below. However, the team at EQ can be available to assist you in undertaking this assessment.
An assessment usually includes two factors: the likelihood of being exposed to a risk while performing a role, and the potential consequences of that risk. To carry out a risk assessment for exposure to COVID-19, you need to consider two main things about the role: the likelihood of a workers being exposed to COVID-19 while performing the role, and the potential consequences of that exposure on others (e.g. community spread).
Identifying the likelihood of COVID-19 exposure
The first thing you need to consider in your risk assessment is the likelihood that a worker performing the role will be exposed to COVID-19. If regular testing isn’t mandatory for the role, but you still think there may be a high likelihood of exposure, the Ministry of Health has information about the transmission of COVID-19 that may help you decide this. This includes information about exposure duration and where and how the exposure occurs.
Identifying the potential of that exposure on others
To help you work out potential consequences, you need to consider whether the role involves regular contact with vulnerable people (e.g. those with health conditions) and older people. The Ministry of Health has information about people who are at high risk of severe illness if they contract COVID-19.
Completing the risk assessment
If there’s a high likelihood that the person performing the role may be exposed to COVID-19, and that the consequences would be significant for other people, it’s likely that the role needs to be performed by a vaccinated person.
If you decide that a role needs to be performed by a vaccinated person, you’ll need to work through the employment implications. Employment New Zealand has guidance on this.
Human rights obligations towards Employees
Under the Human Rights Act 1993 (‘HRA’), employees have the right to be free from discrimination and employers must consider this when making decisions. Under the Bill of Rights Act 1990 (‘BORA’), every person has the right to refuse to undergo medical treatment. As evident with workers under the Order, these rights may be subject to justified limitations imposed by the government.
Can an Employer tell co-workers about another Employee’s COVID19 diagnosis even if the Employee does not give the employer permission to share it?
Under the Privacy Act 2020 there is a general obligation not to use or disclose personal information, unless an exception applies. An exemption may occur when an employer believes that it is necessary to reduce or prevent the risk of a serious threat to a person’s safety, wellbeing or health. It may be necessary to inform other colleagues of the employee that was infected to manage the employees that may have been exposed, so that the employees can monitor themselves and symptoms, and if necessary, self-isolate.
It is important that the employer firstly discusses with the employee what details the employer will share. If it is not necessary to name the affected employee then it will be best to refrain from doing so. However, in some circumstances it may only be possible to protect other's safety by informing them of the affected individual’s name.
Following a health and safety risk assessment, what is the procedure if people refuse to be vaccinated where it is a requirement of their role?
As mentioned above, employers must act in good faith and communicate with their employees about the need for certain roles to be undertaken by vaccinated persons. If an employee falls into this category and refuses to get vaccinated, the employer should take steps to come to an agreement with the employee or seek to transfer the employee to an alternative role within the business. As referred to above, this may not always be practicable and there may come a time where the employee will not be able to meet the requirements of their role without being vaccinated. This may give rise to an employer seeking termination on grounds of refusal to vaccinate, which could be an option. There is very little precedent available regarding this situation, and if this does arise within your business, we must strictly caution against an employer proceeding with this course of action without seeking independent advice.
In summary this is a very contentious topic and there is no clear answer as to whether you can require positions within your business to be carried out by vaccinated people. It is important that we refer to the positions requiring a vaccinated person and not the person itself, otherwise, that would be a breach of the BORA and HRA. In order to determine whether a particular position requires a vaccinated individual, an employer must first conduct a health and safety risk assessment. This takes into account the likelihood of COVID-19 exposure and identifying the potential of that exposure on others. Throughout the entire process, consultation is paramount, and employers must not neglect their obligations under the ERA in relation to acting in good faith.
Once more, the information that we are presented with on this topic is evolving rapidly and it may be rendered irrelevant tomorrow. If you have any further questions or queries, please don’t hesitate to contact one of the team at EQ.