Under the New Zealand Government’s vaccine campaign, it is not mandatory to be vaccinated against the Covid-19 virus.  Employers can therefore not require their employees to be vaccinated, unless it is necessary for health or safety reasons for a particular role.

Health and Safety

Persons conducting a business or undertaking (PCBUs) owe duties to workers under the Health and Safety at Work Act, to ensure as far as is reasonably practicable the health and safety of its workers, patrons, customers and clients. Therefore, in order to reduce the likelihood of Covid-19 exposure, risk assessments must occur and safeguards and protocols must be established.

To reduce the exposure to risk in the workplace, PCBUs should support and encourage their workers to be vaccinated, provide their workers with information regarding vaccines, undertake Health and Safety risk assessments, and implement vaccine policies.

When is vaccination required for the performance of a role?

If a Health and Safety risk assessment of a particular role indicates that vaccination is necessary to comply with Health and Safety obligations, an employer may then require vaccination for a particular role.  Rather than any ‘employee’ requiring vaccination, it is the particular ‘role’ that requires a vaccinated employee to carry it out. 

Alternatively, if a role requires mandatory Covid-19 testing under the Covid-19 Public Health Response (Required Testing) Order 2020, vaccination is likely to be required for that role.

Health and Safety risk assessments will typically require vaccination for a particular role that has a high likelihood of exposure to Covid-19 in the workplace and/or significant consequences to others in regular contact with the individual performing that role.  Examples will include roles where employees have lots of contact with customers and clients or other employees.

Health and Safety risk assessments must be completed with consultation and input from workers, unions, and other relevant representatives.

Employers may require vaccination for new employees, however this must be reasonable for the particular role.

Additionally, employers must take care to ensure they are not unlawfully discriminating under the Human Rights Act or affecting the right to refuse medical treatment under the New Zealand Bill of Rights Act.

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

If an employee refuses to inform their employer of their vaccination status, the employer may assume that employee is not vaccinated in order to manage its Health and Safety obligations. If an employer makes this assumption, it must inform the employee of doing so and what the possible consequences may be.

What if vaccination is refused?

If an employee refuses vaccination following a risk assessment that identifies it as necessary for the employee’s role, an employer may consult with their employee to change their work arrangements, duties or leave, or restructure their work or employment conditions. 

The Ministry of Business Innovation and Employment advises in its guidelines that redundancy or dismissal should be considered as final options after changes to the employee’s duties or redeployment to other roles.  Without consideration of all reasonable alternatives dismissal of an employee who refuses to be vaccinated will nearly always be unjustified.

Any changes, dismissals, or risk assessments must be carried out in good faith.

If there are concerns in your business in relation to employees receiving the Covid-19 vaccination, it is wise to speak with a professional experienced in the area.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.