A guide to employers on Vaccination status of their existing and potential employees
Venkat Raman
Auckland, December 24, 2021
In an age of misinformation, fake news and false propaganda, and especially during times of pandemic, people need reliable source of information and it has been proved time again, that authenticity can come only from the government- central and local – and from ministries, agencies and government officials.
Never have New Zealanders experienced such explosion of information – more often than not false ones – than they have over the past two years. Since the entry of Covid-19 into New Zealand, there have been conspiracy theories and Anti-Vaccine slogans everywhere.
The Right to Know
The Right to Know is assured; and so is Freedom of Speech. The latter, if stretched, can lead to harmful consequences and nothing more is relevant than the Vaccination campaign of the government since its launch earlier in the year.
The Nation is divided on the issue: There is a vast majority of people- almost 95% of them – who are convinced that vaccination is the only way of protection against Covid-19 and its variants- Delta and Omicron. Of these, some are not able to take the Vaccine either because of their age or because of their underlying health conditions. Even so, the Vaccination rate is now more than 90% and is expected to grow. Booster shots will also help and are underway.
The government has mandated Vaccination for workers in some sectors of the economy. Laws are in place to encourage eligible members of the population to take both doses of the Pfizer Vaccine and the booster shots. It is possible that other approved Vaccines will become available in due course.
Employment New Zealand (ENZ), a government department attached to the Ministry of Business, Innovation and Employment has been issuing clarifications to help employers and employees understand their duties and obligations as well as their rights and responsibilities. The following is an extract from the ENZ website.
Employees’ questions and answers
Employees may have questions about the Vaccine. Employers can help by directing them to official sources for accurate information.
Before any Vaccine is approved for use in New Zealand, it must meet international standards and local requirements for quality, safety and efficacy.
This does not mean that employers should debate or provide detailed answers to questions about the Vaccination, its safety, and effectiveness as a control against infection, transmission and severe illness.
When detailed medical questions are raised, an employer can rely on expert public health advice and can point employees who are concerned to that information.
Employers should consider providing an employee with access to someone who can deliver this advice in a way that is readily understood, if that was reasonable and practicable in the circumstances. This could include a medical practitioner.
Sharing Vaccine misinformation could, in some circumstances and in some workplaces, potentially amount to misconduct in the workplace. Employers should seek legal advice before taking any action for such conduct.
Time-off for Vaccination
Employees are entitled to reasonable paid time away from work during their normal working hours to receive a dose of a Covid-19 Vaccine. However, such time-off should not unreasonably disrupt the employer’s business or the employee’s performance of duties.
Before attending a Vaccination appointment during work hours, an employee must let their employer know the date and time that they intend to receive a Vaccination and the amount of time that they expect to take to receive that dose, including travel time.
If the proposed date or time would be unreasonably disruptive, the employer and employee should seek to agree on a different date or time.
In agreeing on what time off is reasonable, both parties should consider the location of the nearest Vaccination Centre, availability of appointment times, transport options and travel time, and the 15-minute monitoring time after Vaccination.
Workplace Policy
Employers may opt to develop a workplace policy that indicates when they will consider it reasonable to take time-off to be vaccinated, so that they do not need to consider employees’ notifications on a case-by-case basis.
Employers do not need to record this leave in their payroll system, but it is a good idea to record that the employee took this leave, in case there is a dispute.
An employer must pay their employee for the time taken for Vaccination at the rate of pay that the employee would otherwise receive. If an employee arranges Vaccination outside of their ordinary working hours, they are not entitled to paid time-off.
Paid time-off to receive a Covid-19 Vaccination is separate to the entitlement under the Holidays Act 2003. As such, employers cannot ask employees to use annual or sick leave to get vaccinated. If an employee suffers side effects because of the vaccination, any time they take off to recover can be taken as sick leave.
Vaccination information
Employers 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.
Employees do not have to disclose their personal vaccination status. If they choose not to disclose their vaccination status, employers may assume that they are unvaccinated, but must inform workers in advance that they will make this assumption, and what it may mean for their employment.
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.
At a job interview: Employers can ask candidates if they are vaccinated only if the role could reasonably require Vaccination. For example, if an employer decides that certain work requires Vaccination or that 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: Employers collecting information must comply with the Privacy Act and take reasonable steps to ensure that the 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 reasonable steps are taken to ensure that the information is accurate and up to date before it is used.
Source: Employment New Zealand
