Employment implications of COVID-19 vaccination: Questions and answers for employers

Answers to the questions employers may have about vaccines and the workplace.

How can my business support the COVID-19 vaccination campaign?

Employment New Zealand encourages all employers to make it easier for their employees get vaccinated by removing any barriers, such as costs or having a disadvantage (travel or time off work is needed). For example, you as an employer could:

  • Allow your employees to get vaccinated during work hours, without having to use annual holidays (annual leave) or losing pay.
  • Make your employees aware of information about vaccination available from the Ministry of Health or District Health Boards.
  • Organise vaccination at your workplace, if asked by the Ministry of Health or a District Health Board.

Can I fire my employees if they refuse to be vaccinated?

No. Firing or dismissing your employees should only be the last thing you should do, when there are no other alternatives.

First, you need to decide if there are any roles in your business which need to be done by vaccinated employees. This will be either because your work is covered by a Health Order, or for health and safety reasons. There may be no such roles in your business. If you think there might be, you must first evaluate these roles for COVID-19 exposure and transmission risks – see questions 4 and 5 below.

If you have identified roles where the risks are high or your employees fall under a Health Order, there are several things you must do before considering dismissal:

  • Consulting employees and the union (if any is available) for lawful solutions
  • Changing work arrangements or duties permanently or for a period of time 
  • Agreeing with any affected employee to some type of leave
  • Restructuring the businesses or the work
  • Medical incapacity 

You should not dismiss any employee without going through a lawful dismissal process and consulting a lawyer. This can have serious financial consequences, if this is decided to be a wrongful dismissal by the Employment Relations Authority or the Employment Court. 

COVID-19: Epidemic notice and Orders — Ministry of Health (external link)  

Medical incapacity 

Can I make my employees get vaccinated?

No. You can only require that certain roles are performed by employees who are vaccinated, if the work is covered by a Health Order, or if a risk assessment shows that there is high risk of getting and/or infecting others with COVID-19. There are very few types of work in New Zealand where this would apply.

How do I know if my employees need to be vaccinated?

Some employees will be covered by a Health Order, which requires vaccination.

If your business is not covered by a Health Order, and you think vaccination might be needed, you must first evaluate your COVID-19 exposure risk. You must talk to workers, unions (where there is one) and other representatives when doing a risk assessment process, and also when deciding how to eliminate or minimise risks.

The COVID-19 exposure assessment takes into consideration two factors about the role:

  • the likelihood of employees being exposed to COVID-19 while performing the role, and
  • the potential consequences of that exposure on others (e.g. community spread).

Assess whether a specific role needs to be performed by a vaccinated worker – WorkSafe (external link)

Public health guidelines for businesses and services – Ministry of Health (external link)

What is the COVID-19 exposure assessment?

If you think a role in your business needs to be performed by employees who are vaccinated against COVID-19, you need to assess the role’s exposure risk to COVID-19.

To carry out a risk assessment for exposure to COVID-19, you need to consider two main things about the role:

  • the likelihood of employees being exposed to COVID-19 while performing the role, and
  • the potential consequences of that exposure on others (e.g. community spread).

If there’s a high likelihood that the employee performing the role may be exposed to COVID-19 and the consequences would be significant for other people, it’s likely the role needs to be performed by a vaccinated person.

Assess whether a specific role needs to be performed by a vaccinated worker – WorkSafe (external link)

Public health guidelines for businesses and services – Ministry of Health (external link)

What can I do if my employees must be vaccinated to do their work and they are not vaccinated?

If your employee's role requires vaccination, but your employee is not vaccinated (and does not intend to be vaccinated), you should take care to be fair and reasonable in your response. Work through the process with your employee in good faith before deciding on any outcome to avoid any problems later. See Question 2 for alternative options. 

Good faith 

Can I make my employees get vaccinated for other business reasons?

No. This would amount to making your employees undergo a form of medical treatment solely for a marketing benefit.

What can I do if my employees must be vaccinated to do their work, but they refuse to tell me or provide proof that they have been vaccinated?

If your employees are in roles that require vaccination, and don’t want to tell you that they have been vaccinated, both you and your employees may need to consider other options. Consider if there are practical barriers to get vaccinated (e.g. travel or time off work is needed), you should deal with these first, before considering alternatives.

If your employees refuse to be vaccinated or to confirm that they have been vaccinated, you might need to consider them unvaccinated, for example, where the employee is covered by a Health Order. If you intend to consider an employee “unvaccinated”, you will need to tell them what this might mean for their employment first.

Can I change my unvaccinated employees’ work arrangements or transfer them to other positions if vaccination is required for their job?

In this situation, before considering changes to roles or work, you should consult with your employees (and their union, if one is available), and agree if changes to their work arrangements are possible or desirable. These changes could include the following details, the:

  • location
  • hours of work
  • duties (e.g. job content)
  • transfer to other positions that no longer poses a high risk.

Employers should also consider whether the tasks that require vaccination can be postponed. For example, if an employee can’t be vaccinated (e.g. 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.

Modifying employment agreements during COVID-19 response and recovery

Can I ask my unvaccinated employees to take annual leave or other leave if vaccination is required for their job?

Annual leave or other leave needs to be agreed by both parties. You cannot force your employees to take leave without their consent. Employers and employees must agree on any leave: either special paid leave, annual leave, advanced leave or unpaid leave.

If you and your employee cannot agree, you can direct your employee to take annual leave, but only if your employee has annual leave available and you must give them at least 14 days’ written notice.

Taking annual holidays

If you as an employer have directed your employee to take unpaid leave, this could be seen as you unlawfully suspending the employee.

Suspension

Can I consider activating the medical incapacity provisions in an employment agreement if my business requires that some of my employees be vaccinated, and they are not?

In limited circumstances, an employee being unvaccinated could be grounds for medical incapacity. These circumstances are rare and likely to only arise where the roles already require certain other vaccinations. In these cases, employers should follow any contractual process for medical incapacity, which could include notice periods and compensation.

This is not likely to apply unless there are already specific provisions for medical incapacity in your employment agreement. You should take legal advice on this.

Medical incapacity

What else can I do if my business requires that some of my employees be vaccinated, but they can’t or won’t for religious, health or cultural reasons?

Both parties (employer and employee/s) 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.

Modifying employment agreements during COVID-19 response and recovery 

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Page last revised: 05 May 2021

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