The employment law issues facing businesses in 2021 are different in many ways from those that were faced by businesses in 2020.
The introduction and roll-out of the vaccine in New Zealand (and worldwide) has thrown open the issue of to what extent an employer can require its workers to get vaccinated.
1: Can I require certain roles to be carried out by vaccinated workers?
POTENTIALLY – do risk assessment now
Some roles are covered by government Orders, which make it mandatory for particular roles to only be carried out by vaccinated people. We expect more industries to be covered by mandatory Orders in the future.
For all other employers, you should undertake health and safety risk assessments of particular roles now to determine:
The likelihood of being exposed to a risk while performing a role and the potential consequences of that risk on others (e.g., community spread).
The construction industry is an industry not covered by an Order, but appears to be requiring only vaccinated workers on site.
Employers will need to follow legal process and consult with staff regarding vaccination requirements.
Privacy, Human Rights and Health and Safety obligations will need to be balanced – so get legal advice first. Cases in this area are currently before the court.
2: Can I ask my staff if they are vaccinated?
YES, in some circumstances
Many employers want to know and understand the vaccination status of their employees.
Some businesses will be able to ask staff for information on their vaccination status. We strongly suggest getting advice first in order to assess whether your business fits into this category and ensure you are complying with the Health and Safety at Work Act 2015 and that you comply with the Privacy Act principles in relation to collecting, storing and sharing this information.
3: Should we introduce a Vaccination Policy?
POTENTIALLY – put it in place now
Most businesses should have a Vaccination Policy or COVID-19 Policy in place which covers:
- Health and safety obligations
- PPE requirements
- Mask requirements
- Sickness expectations
- Privacy Act compliance
- Customer expectations / behaviour
A Vaccination Policy and a robust Health and Safety Policy will go a long way to ensuring the employer is properly complying with the Health and Safety at Work Act 2015 and is communicating its expectations and rules properly with its workers.
4: Can I require new staff to be vaccinated?
POTENTIALLY – update Independent Employment Agreements (IEA) now
You will need to assess whether the requirement for the role to be carried out by a fully vaccinated worker is justified, and then:
Update suite of Employment Agreements; and
Ensure other recent changes to employment law (e.g., bereavement leave, sick leave, privacy laws) are also incorporated into the updated Employment Agreements at the same time
You must ensure you understand your obligations around non-discrimination.
The information contained in this article is general advice and should not be relied upon or taken to be legal advice for specific situations. We strongly recommend you seek legal advice in order to understand the obligations of your business (including in relation to the roles within your business / the industry you are in / the risks your business may be facing).
SOURCE: Davenports Law
For all your Employment Law queries, get in touch with Bronwen and the employment team.
bronwen@davenportslaw.co.nz | 09 883 3289
