Can You Require Workers to be Vaccinated?

Can You Require Workers to be Vaccinated?

The Government has recently made a number of announcements impacting employers and their businesses in preparation of New Zealand living with Covid-19 in the community. We have outlined these below.

On Tuesday, the Government announced that legislation will be passed urgently to require vaccinations for all workers at businesses where customers must show Vaccination Certificates to access a business' services. This will apply to all close contact businesses such as hairdressers, gyms and hospitality.  

The Government also announced:

• A health and safety risk assessment will be legislated. The health and safety assessment can be used when an employer is deciding whether to mandate vaccination in a particular workplace.

• If an employee's employment is terminated because they refuse to be vaccinated, an employer is required to provide the employee a minimum four week notice period. The four week notice period is to be paid and is intended to allow the employee an opportunity to reconsider their decision to be vaccinated.  

• Employers must provide paid time off for employees to get vaccinated and are required to keep records about all employees' vaccination status.

The timing of the new system coming into effect will depend on when Auckland and New Zealand moves into the Government's new traffic light Covid-19 management system. These announcements have provided some certainty for employers regarding their right in requiring employees to be vaccinated.

Covid-19 Public Health Response (Vaccinations) Order 2021

In addition to the above, the Government extended the Covid-19 Public Health Response (Vaccinations) Order 2021 ("Order") to include workers and volunteers in education services and the majority of healthcare and disability workers in addition to frontline workers. The dates for vaccination have been extended. The workers must have their first vaccination by 15 November 2021, and the second dose by 1 January 2022. If a worker doesn’t have their first vaccination by 15 November, they cannot continue in the role and the four week notice period will apply.

What happens if your workers do not come within the Covid-19 Public Health Response (Vaccinations) Order 2021?

Before an employer can introduce mandatory vaccination for particular roles that are not covered by the current Order or the new Covid-19 Protection Framework requiring vaccination certificates, they must undertake a health and safety risk assessment for each role. While the Government have not yet introduced legislative framework surrounding the process of conducting a health and safety risk assessment, WorkSafe have released loose guidelines for employers. Although these guidelines are brief, they give us insight into what the legislative framework to come will provide.

When conducting a health and safety risk assessment, the focus must be on the role and the work that role conducts rather than the individual employee. Below are some generic questions WorkSafe have identified that should be asked during the assessment:

• How many people does the employee carrying out that work come into contact with?

• How easy will it be to identify the people who the employee comes into contact with?

• How close is the employee carrying out the tasks in proximity to other people?

• How long does the work require the employee to be in that proximity to other people?

• Does the work involve regular interaction with people considered at higher risk of severe illness from Covid-19, such as people with underlying health conditions?

• What is the risk of Covid-19 infection and transmission in the work environment when compared to the risk outside work?

• Will the work continue to involve regular interaction with unknown people if the region is at a higher alert level?

The questions above should be asked in addition to questions more specific to each role and industry practice. Mitigating factors should also be part of the assessment, for example, what measures can be put into place to minimise the risk such as wearing facemasks, social distancing, screens between work spaces, working from home and increasing cleaning and hygiene practices.

Employers can require certain roles be conducted by a vaccinated employee if the health and safety risk assessment determines that it is necessary for work health and safety purposes.

Throughout the assessment, employers must consult in good faith with employees and remain transparent during the process. This is a complex and evolving area. We advise that before commencing a risk assessment, employers should seek legal advice.

Please direct any enquiries to:

Melissa Johnston (Partner) on (09) 306 6729 (mjohnston@mcveaghfleming.co.nz)

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Employment Law

Written by Melissa Johnston and Olivia Faulds

© McVeagh Fleming 2021

This article is published for general information purposes only.  Legal content in this article is necessarily of a general nature and should not be relied upon as legal advice.  If you require specific legal advice in respect of any legal issue, you should always engage a lawyer to provide that advice.

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