1 Sep 2021
The Covid-19 vaccination is being rolled out, in stages, to all eligible people in New Zealand by the end of the year. But can your employer require you to get inoculated?
Vaccines play a critical role in reducing the risks of Covid-19 infection and transmission. But regardless of your personal views on vaccinations, can your employer require that you get inoculated? The short answer is no. Vaccinations are not mandatory. Under the New Zealand Bill of Rights Act 1990, everyone has the right to refuse medical treatment – which includes vaccinations.
Your employer does, however, have obligations under the Health and Safety at Work Act 2015 to do everything they can to reduce risks to the health and safety of their staff. So, where there is a high risk of contracting and transmitting Covid-19, a business can require that certain work must only be done by vaccinated employees.
To decide whether work is high risk, a business will need to carry out a risk assessment in consultation with workers. That assessment will need to consider whether other public health measures, such as personal protective equipment (PPE) use and social distancing, can sufficiently minimise the risk. If, after a risk assessment, your employer decides certain roles do fit the criteria for requiring vaccination, this will need to be discussed with you as a variation to your existing employment agreement.
Importantly, even in a global pandemic, existing employment law obligations still apply. This includes making changes to terms and conditions of employment by agreement, engaging in good faith consultation and avoiding unlawful discrimination.
There are some workplaces that, since 30 April 2021, have been covered by the Covid-19 Public Health Response (Vaccinations) Order 2021, which requires that only vaccinated workers are able to undertake certain roles. There are few of these; they include airports, ports and managed isolation and quarantine facilities. These workers were in the priority groups for the vaccine rollout and will have already had discussions with their employers.
Whether or not you are willing to roll up your sleeve for the jab, you do not have to tell your employer. If you do discuss your vaccination status with them, they must treat this as personal information under the Privacy Act 2020 and not share it with your colleagues without your consent. Your employer is allowed to ask you about your vaccination status, but you are under no obligation to tell them, nor do you have to disclose the reasons. Your employer cannot redeploy or disadvantage you if you refuse to share your vaccination status, unless particular work needs to be done by vaccinated workers.
The Government is encouraging employers to make it as easy as possible for workers to get vaccinated. Some larger workplaces may make arrangements for on-site vaccinations or allow you to take time away during your workday to visit a vaccination centre. Your employer can encourage you to use a particular provider but ultimately the choice is yours.
Although side effects from vaccinations are uncommon and usually mild, if you do have a reaction that requires time off work, you will be able to use your sick leave to cover this time.
All of the above discussion relates to current employment. The situation is different if you are embarking on a new job with a new employment agreement. A prospective employer may ask you about your vaccination status and may require you, as part of a new employment agreement, to agree to be vaccinated. This must be reasonable for the role and must not amount to unlawful discrimination under the Human Rights Act 1993. There may, for example, be religious or medical reasons why you are unable to receive the vaccine.
The first rule of Engineering New Zealand’s Code of Ethical Conduct is that all members must, in the course of their engineering activities, take reasonable steps to safeguard the health and safety of people. You also have a legal duty as a worker, under the Health and Safety at Work Act, to take reasonable care for your own health and safety and to take reasonable care that what you do – or do not do – does not adversely affect the health and safety of other people.
Tiffany Matsis is Senior Legal Advisor at Engineering New Zealand.