Note: This page uses the terms 'businesses', 'workers', 'employees' and 'employers'. This is because vaccination issues at work involve health and safety law and employment law. Health and safety law applies to PCBUs (Persons Conducting a Business or Undertaking, referred to as 'businesses' below) and workers (including employees and independent contractors). Employment law applies to employees and employers.
New Zealand has embarked on its largest ever vaccination campaign, which will provide free COVID-19 vaccines for everyone in Aotearoa.
Safe and effective vaccines are essential to protect New Zealand and our Pacific neighbours from COVID-19.
Workplaces will play a key role in supporting our vaccination campaign, and the rollout of COVID-19 vaccines will likely raise some important employment and health and safety questions.
Businesses, workers and their representatives should communicate early and openly. The duty of good faith in employment relationships and consultation requirements under the Health and Safety at Work Act also apply to conversations about workplace vaccination issues. Businesses and workers can also access support from MBIE’s Early Resolution Service to resolve employment problems early and informally.
Check the Ministry of Health and Unite Against COVID-19 websites for current information about the COVID-19 Immunisation Programme:
Supporting the vaccination campaign
We encourage all businesses to support their workers to access vaccination without workers facing costs or disadvantage. For example, this could mean:
- Allowing all workers to access vaccination during work hours (when available) for themselves and their dependents, without using annual leave or losing pay.
- Providing workers with relevant and timely information from the Ministry of Health or District Health Boards about the importance and benefits of vaccination.
- Facilitating on-site vaccination, if asked to do so by the Ministry of Health or a District Health Board. Vaccines are being administered to workforces at higher risk first. Most businesses will need to wait until vaccines become more broadly available.
Continuing with other public health measures
Vaccines play a critical role in reducing risks of COVID-19 infection and transmission. They are something all businesses should consider as part of their health and safety activities and assessments. When considering workplace vaccination issues, businesses should consult up-to-date public health guidance. Current advice from the Ministry of Health is that vaccination supports, and does not replace, other infection prevention and control measures.
Businesses must take steps to eliminate or otherwise minimise risks, including the use of personal protective equipment and cleaning, where recommended under public health guidance.
Businesses and other organisations should continue to encourage use of the NZ COVID Tracer app by clearly displaying QR codes, and must follow Alert Level rules.
COVID-19 vaccination will not be needed for most work
Businesses should support workers to access vaccinations
If there are practical barriers to accessing vaccination (eg travel or time off work is needed), businesses should help address these. Some workers will have individual health concerns or other reasons for needing support. Businesses should ensure they do not directly or indirectly discriminate against workers on the basis of their vaccination status.
Health and safety reasons for requiring work to be done by vaccinated workers
Businesses cannot require any individual to be vaccinated. However, businesses can require that certain work must only be done by vaccinated workers, where there is high risk of contracting and transmitting COVID-19 to others. This will be a minority of all work in New Zealand. This could change if there is a significant shift in the COVID-19 situation domestically.
To decide that work is high risk and therefore needs vaccination for health and safety reasons, businesses must first assess their COVID-19 exposure risk. This applies to work done by all workers, whether employees or independent contractors. Businesses must involve workers, unions and other representatives in the risk assessment process, and when deciding how to eliminate/minimise risks. Businesses should consider whether other public health measures (eg physical distancing, PPE usage) can minimise the risk of exposure and transmission of COVID-19.
Reasons for requiring vaccination other than health and safety are unlikely to be sufficient, for example, requiring vaccination to promote your workplace as being fully vaccinated. This would amount to requiring workers to undergo a form of medical treatment solely for a marketing benefit.
If certain work can only be done by vaccinated workers, businesses should set a reasonable timeframe for workers 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.
COVID-19 Public Health Response (Vaccinations) Order 2021
From 1 May 2021, some work at the border can only be done by vaccinated workers. This means businesses do not need to do individual health and safety risk assessments for work covered by this Order. Work covered by the Order must only be done by vaccinated workers.
The Order has been expanded to apply to more work at the border from 15 July 2021. There is a reasonable window of time for vaccination of workers covered by the expanded Order:
- All wider government workers (including Crown entity employees) must have had their first dose by 26 August 2021, and their second dose by 30 September 2021.
- Privately employed border workers must have had their first dose by 30 September 2021 and their second dose by 4 November 2021.
- New workers covered by the Order must have their first dose before starting work, and their second dose within 35 days of starting work.
Employers or PCBUs are responsible for making sure their employees meet vaccination requirements, including preventing their employees from carrying out certain tasks if they have not been vaccinated.
Under the Order, workers must give their employer/PCBU certain information so that their employer/PCBU can meet its vaccination requirements.
Employers or PCBUs must record employees’ details in the Border Workforce Testing Register. Employees’ details will be forwarded to local DHBs, who will then contact employees to book a vaccination appointment. This will ensure priority access to appointments for workers covered by the Order.
Employment law continues to apply to employees doing work covered by the Order, even if they are not vaccinated. This includes good faith requirements for any conversations about changing work arrangements/duties, taking leave, or restructuring work.
A person’s vaccination status is personal information
Collecting, storing and sharing information about people’s vaccination status must be done in accordance with the Privacy Act.
Asking workers whether they are vaccinated
Generally, a worker does not need to disclose (or prove) their vaccination status to a business.
If certain work cannot be done by an unvaccinated worker, a business can ask a worker about the worker’s vaccination status. If the worker does not disclose (or provide evidence about) their vaccination status, the business may assume the worker has not been vaccinated for the purposes of managing health and safety risks. However, businesses should first inform workers of this assumption, and what will happen if the worker is not vaccinated or does not disclose their vaccination status.
Employees cannot be redeployed or disadvantaged for refusing to disclose their vaccination status, unless particular work cannot be done by unvaccinated employees.
From 1 May 2020, the Ministry of Health can inform PCBUs whether workers covered by the COVID-19 Public Health Response (Vaccinations) Order 2021 have been vaccinated.
Asking candidates whether they are vaccinated during a job interview
Businesses can only ask candidates if they are vaccinated when this is justified by the requirements of the role. For example, if a business decides, following a COVID-19 exposure risk assessment, that certain work cannot be performed by an unvaccinated worker, it may be reasonable to ask about an applicant’s vaccination status. This information will need to be collected and handled according to the Privacy Act.
Protecting personal information
Businesses must take reasonable steps to ensure information about vaccination status is collected lawfully, including that workers are aware of how this information will be used, and why it is being collected. Businesses must not pass on information about a worker’s vaccination status to others without the worker’s consent, or otherwise allowed by the Privacy Act.
Employment law continues to apply if work cannot be done by unvaccinated employees
Particular laws apply for employees and employers. The information in this section is for employment relationships where an employee does work that can only be done by a vaccinated worker, either:
- For health and safety reasons, justified by a COVID-19 exposure risk assessment, or
- Because their work is covered by the COVID-19 Public Health Response (Vaccinations) Order 2021.
If employees are doing work that can only be done by a vaccinated worker, but are not vaccinated, employers will need to address any practical barriers to accessing vaccination (eg if travel or time off work is needed). Employers should do this before considering any of the options below.
Employers should take care to be fair and reasonable in their response, and work through processes with employees in good faith before deciding on any outcome.
Changing work arrangements or duties
In consultation with employees and their unions, employers should consider how much of an employee’s work poses a high risk of exposure to COVID-19. Employees and employers can both agree to change work arrangements (eg location or hours of work) or duties (eg job content), which could mean a role no longer poses a high risk.
Employers and employees (with their unions) should try to reach a mutually agreed outcome, such as agreeing to change work arrangements or duties.
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 (eg pregnancy, certain medical conditions, or existing medication regimes) then this might mean certain alternative arrangements can be agreed for the short term, with vaccination planned for a later date.
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.
Employers may also consider restructuring, including redundancies, if most (or all) of a role carries an established high risk of exposure to and transmission of COVID-19. This could mean that the introduction of COVID-19 vaccines has changed the role to the extent that it can only be done by vaccinated employees. Employers may need fewer unvaccinated employees as a consequence. If so, employers should take care to act in good faith. Employers should seek legal advice about this.
Redundancy must be the last option, after all other options have been exhausted.
In limited circumstances, an employee being unvaccinated could be grounds for medical incapacity. These circumstances are likely to only arise where roles already require certain other vaccinations. In these situations, employers should follow any contractual process for medical incapacity, which could include notice periods and compensation.
Ultimately an employer and employee may agree to a negotiated end of employment, but individual dismissals are unlikely to be justifiable in almost all cases, based on current circumstances.
Parties can also agree on any other option that is lawful, as long as they follow the terms of an individual or collective employment agreement that applies.
Amending employment agreements and workplace policies
Amending existing employment agreements
Employers and employees (or their unions, for a collective agreement) can negotiate variations to existing conditions. This could include adding COVID-19 vaccination as a term of employment, if it is reasonable for the role (for example, required for health and safety reasons).
Requiring vaccination for new employees
Employers can require vaccination as a term of new employment agreements, but this must be reasonable for the role (for example, required for health and safety reasons). This must not be unlawful discrimination under the Human Rights Act.
The New Zealand Bill of Rights Act may also apply. Under this Act, everyone has the right to refuse medical treatment, including vaccination, though this right can be subject to justified limits.
Amending workplace policies
Businesses must engage with workers, unions and other representatives when creating or varying policies and use established processes where possible. Changes to workplaces policies must not result in inconsistency with employment agreements.
Options for workers concerned about unvaccinated colleagues
Right to stop unsafe work
Workers have the right to stop work or refuse to carry out work if they believe that doing the work would expose them, or anyone else, to a serious risk to health or safety from an immediate or upcoming hazard.
In general, unless vaccination is needed for health and safety reasons, work is unlikely to be unsafe solely because it is done around unvaccinated workers.
Flexible work arrangements
Employees have the right to request a change to their work arrangements, which includes their place of work.
Sharing vaccine misinformation
Before any vaccine is approved for use in New Zealand, it must meet international standards and local requirements for quality, safety and efficacy. We should all play our part, by relying on trustworthy information about vaccines.
Sharing vaccine misinformation could, in some circumstances and in some workplaces, potentially amount to misconduct in the workplace. Such instances are likely to be rare. Employers should seek legal advice before taking any action for such conduct.