New legislation (an amendment to the Employment Relations Act 2000) is now in effect. This means employers are now required by law to provide:
- a minimum 4 week notice period if employment agreements are terminated because an employee is not vaccinated, and their role requires it
- reasonable paid time off for an employee to get vaccinated.
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 play a key role in supporting our vaccination campaign, and the COVID-19 vaccine raises 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. Employers and employees can access support from MBIE’s employment mediation service to resolve employment problems early and informally, either through early resolution or mediation.
Check the Unite against COVID-19 website for information on getting a vaccine:
Work requiring COVID-19 vaccination
Government mandates for specific work
The Government has mandated work be done by vaccinated people in specific sectors or business types:
- Border and managed isolation and quarantine workers
- Health and disability workers
- Prison workers
- Education sector workers
- Food and drink services (excluding businesses operating solely as takeaways), events, close proximity businesses and indoor exercise facilities like gyms
- On-site tertiary education (only at the Red level of the COVID-19 Protection Framework)
- New Zealand Police (sworn members, recruits and authorised officers)
- New Zealand Defence Force (Armed Forces and civilian staff).
Unite against COVID-19 has more information about COVID-19 vaccinations for workers at the border and sectors including health and disability and education.
We encourage employers and employee to have good faith conversations about this requirement that will see workers at these businesses need to be vaccinated.
Unite against COVID-19 has a toolkit for businesses to help with these conversations.
Assessing the risk of COVID-19 in the workplace
If their work is not subject to a mandate, a business can still require that certain work must only be done by vaccinated workers, based on the risk of contracting and transmitting COVID-19 to others. Businesses cannot require any individual person to be vaccinated.
To decide that work 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. Businesses should consider whether other public health measures (eg physical distancing, PPE usage) can minimise the risk of exposure and transmission of COVID-19.
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.
A new vaccination assessment tool for businesses to use
The Government has announced there will soon be a new assessment tool businesses can use to decide whether they can require if work at their business must be done by vaccinated people.
More information and guidance about the tool will be available shortly on business.govt.nz
Employers must provide paid time off for employees to get vaccinated
Employees are now eligible for paid time off from work to receive their COVID-19 vaccination. Many employers are already doing this to encourage their workforce to be fully vaccinated. New Zealanders should consider getting vaccinated as soon as possible.
Employees will be entitled to reasonable paid time away from work to receive a COVID-19 vaccine. In agreeing what time off is reasonable, employers and employees should consider matters such as the location of the nearest vaccination centre, the availability of appointment times, transport options, travel time, and the 15 minute monitoring time after the vaccination.
If there are any other practical barriers to accessing vaccination employers should help address these. Some employees may have individual health concerns or other reasons for needing support.
Unite against COVID-19 has posters, videos and flyers employers can share with their employees.
New requirement for paid notice period when employment is terminated because of vaccination status
The Government has passed legislation to provide a minimum four-week paid notice period when people have their employment agreements terminated because they are not vaccinated, and their work requires vaccination.
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 will continue to apply.
Other aspects of employment law will not change, including that:
- Employees and employers must continue to deal in good faith.
- Employers must still consider all reasonable alternatives, such as finding other work within the business that does not require vaccination.
- Employees will also be able to dispute any decisions they think are unfair, for example by raising a personal grievance.
This minimum notice period applies to all employees who are not vaccinated, and whose work requires vaccination. It applies to employees covered by a Government vaccination mandate, as well as those whose employers have decided to require vaccination following a risk assessment process.
The termination notice is cancelled if an employee gets vaccinated during their notice period, unless this would unreasonably disrupt their employer’s business. This may include where a small 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.
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. Vaccination supports, and does not replace, other infection prevention and control measures. Workers, representatives and unions should be involved in this process.
Under the Health and Safety at Work Act, 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 or COVID Protection Framework rules.
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 PCBU (or 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.
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.
Current employment law continues to apply
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
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. This outcome should be mutually agreed.
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 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 and consistent with any provisions in employment agreements. Employers are strongly encouraged to seek legal advice about this.
Redundancy must be the last option, after all other options (eg redeployment where possible or rearranging work) have been exhausted. An employer and employee may agree to a negotiated end of employment.
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
Employers 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.
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.
Questions about health issues related to the vaccine
Employers must be open and communicative and respond to workers in good faith where issues are raised by workers, including related to vaccination.
This does not mean employers/PCBUs need to debate or provide detailed answers to questions about the vaccination, its safety, and/or its effectiveness as a control against infection/transmission/severe illness.
Where detailed medical questions are raised, an employer/PCBU can rely upon expert public health advice for those matters and can point workers who are concerned to that information.
Employers/PCBUs should consider providing a worker 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.
An employer/PCBU can then focus any good faith conversation on whether a worker will be vaccinated to do work covered by the Vaccinations Order, or where the PCBU has required that specified work is only done by vaccinated workers for health and safety reasons, following a health and safety risk assessment.
Sharing vaccine misinformation in the workplace
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.