Sourced from Employment New Zealand
Wellington, December 21, 2021
Employers can collect information about their employees’ vaccination status for a lawful purpose. They may ask employees whether they have been vaccinated and to provide proof of vaccination so long as they consider there is a lawful purpose to collect this information.
This could be where work can only be done by a vaccinated worker under a government mandate for health and safety reasons, or to meet a vaccination requirement imposed by a third party.
Right not to disclose
Employees do not have to disclose their personal vaccination status. If they choose not to disclose their vaccination status, employers may assume they are unvaccinated but must inform workers that they will make this assumption, and what it may mean for their employment, in advance.
Employees cannot be redeployed or disadvantaged for refusing to disclose their vaccination status unless the work they are doing cannot be done by unvaccinated employees.
Asking if a person is vaccinated in a job interview: Employers can only ask candidates if they are vaccinated if the role could reasonably require vaccination. For example, if an employer decides that certain work requires vaccination or the work is covered by a Government mandate, it may be reasonable to ask about an applicant’s vaccination status.
Collecting, storing and sharing information about an employee’s vaccination status: Information will need to be collected and handled according to the Privacy Act.
Businesses must take reasonable steps to make sure information about an employee’s vaccination status is collected, used and stored lawfully.
The obligations under the Privacy Act include making sure (a) that workers are aware of how this information will be used (b) any intended recipients of the information (c) that workers know why it is being collected (d) that it is stored securely (e) that information reasonable steps are taken to ensure the information is accurate and up to date before it is used.
Information for employers on record-keeping relating to vaccination of workers is available on www.business.govt.nz
Employment actions for the unvaccinated
Employers should take care to be fair and reasonable in their engagement with employees regarding vaccination, and work through processes with employees in good faith before deciding on any outcome.
Employers cannot require any individual to be vaccinated, however, being unvaccinated may have implications for an employee’s job.
If certain work can only be done by vaccinated workers, employers should set a reasonable timeframe for employees to decide if they will be vaccinated.
If an employee cannot work during this time, special paid leave should be considered, especially in the short term while employers and employees discuss what happens next.
Changing work arrangements
Employers must consider whether there are any alternatives to allow the employee to keep working without vaccination.
Employees and employers may be able to agree on changes to work arrangements (e.g. location or hours of work) or duties (e.g. job content), which could mean that vaccination is no longer required. This outcome should be mutually agreed and independent advice may be needed if this is not possible.
Employers should also consider whether the tasks that require vaccination can be deferred.
For example, if an employee has a particular reason for not being vaccinated (e.g. certain medical conditions, or existing medication regimes) then this might mean certain alternative arrangements can be agreed upon for the short term, with vaccination planned for a later date.
Taking leave
Employers and employees can together agree on a form of paid leave, either special paid leave or annual leave. Special paid leave should be considered, especially in the short term, when employers and employees are discussing whether an employee will be vaccinated and what will happen if the employee is not vaccinated.
If an employer and employee cannot agree, the employer may direct the employee to take annual leave (if the employee has leave entitlements available) with at least 14 days’ notice.
An employer cannot make their employee take unpaid leave without their consent. If an employer has directed their employee to take unpaid leave, this could be seen as the employer unlawfully suspending the employee.
Restructuring work
Employers may also consider restructuring, including redundancies, for example, if they need to meet vaccination requirements imposed by a client. If so, employers should take care to comply with employment law, including acting in good faith and being consistent with any provisions in employment agreements.
Redundancy must be the last option, after all, other options (e.g. redeployment where possible or rearranging work) have been exhausted. An employer and employee may agree to a negotiated end of employment.
If an employee’s agreement is terminated because they are not vaccinated: If all other reasonable alternatives that would allow the employee to keep working have been exhausted, recent changes to the Employment Relations Act require employers to provide employees with at least four weeks’ paid written notice of termination.
This change will only apply to employees who do not have a notice period, or whose notice periods are shorter than four weeks. If an employee has a notice period longer than four weeks in their employment agreement, that longer notice period will continue to apply.
If employees get vaccinated or are otherwise permitted to perform work under a Covid-19 order, during this four week notice period, the termination notice is cancelled, unless this would unreasonably disrupt the employer’s business. For example, where a business has hired a replacement employee and there is no other work available in the business.
If an employee loses their job because they decide not to get the Covid-19 vaccination, there may also be support available from Work and Income.
Support to help resolve employment disputes
Normal employment laws and processes continue to apply. Employers should take care to be fair and reasonable in their employment decisions and work in good faith with employees and unions before deciding on any employment outcomes.
Employees will be able to bring a personal grievance if they feel they have been unjustifiably dismissed or disadvantaged as a result of a decision their employer has made about vaccination.
Employers and employees can access support from MBIE’s mediation service to resolve employment problems.
Should mediation not resolve the dispute, the Employment Relations Authority or Employment Court can determine the issue.
