Vaccination Status Guidance For Employers Legal Solutions

Vaccination Status Guidance For NZ Employers

December 9, 2021 - 4 min read

We’d like to acknowledge that we're in really stressful times and there's lots going on. Over the last few weeks we’ve fielded a lot of phone calls from employers and employees, asking us how they should deal with things like mandated vaccinations in their workplace, vaccinated staff and unvaccinated staff.

So, we thought it was important to give you some tips about what you can and can't do, by sharing some frequently asked questions , with answers from Caroline Silk who is one of our employment lawyers. And we will also give you some links to places where we can find more information.

 

Question: Can we ask our staff if they are vaccinated?

Answer: Yes, you can.  The request needs to fit with a purpose of the business or related to ongoing employment, so you do not breach the Privacy Act.

 

Question:  Can we tell our customers that our staff aren’t vaccinated?

Answer: With their permission. Yes, you can.

 

Question: If my staff are subject to the Vaccine Mandate and have to be vaccinated, what's the best way of dealing with that?

Answer: A consultation process in good faith and jump onto the Worksafe website, or pick up the phone and ask us - find out what you have to do.

 

Question:  I’m an employer and I’ve got a mandated vaccine order, can I get rid of an employee if they won't get vaccinated?

Answer: Yes, you can! However, employment law still prevails, and good faith is really important.

You must consult your employees before you terminate their employment.  There is now a mandatory consultation, and you must exhaust all options before terminating.  IF your Employment agreement does not have 4 weeks’ notice you must also give 4 weeks’ notice for termination related to vaccination under changes to the Employment Relations Act.

 

Question: How do we deal with the traffic light system? What does it mean for my business?

Answer: Jump on the Covid website and have a look at the template information that they've given around what the levels mean and what the operation looks like for business at those levels.  If you are a close contact business you will need to comply with the vaccine mandates to be able to operate “normally”.

 

Question:  What about suppliers and contractors? Can we make a decision about whether they're allowed to come into our businesses, if they are unvaccinated?

Answer:  Employers are obligated to do risk assessments around their health and safety risks. Covid is obviously a health and safety risk. And if they do a risk assessment, which indicates that their staff performing their roles are going to be unnecessarily exposed if an unvaccinated contractor or supplier comes on to their worksite, then, they most definitely can talk to the employers of those people and ask for only vaccinated people to come on to their work site.

 

Question:  Can an employer insist that a staff member get vaccinated because of the risk that there is to the customers? (We've had a couple of calls from people who aren’t mandated to get vaccinated. Their businesses aren't, but they are dealing in close contact with customers).

Answer:  An employer can run a risk assessment around the role that the employee is working in and what the risk of contracting or passing on Covid is because of that role. Again, go back to the MBIE website where the template is around the risk assessment is helpful. There is now a mandatory consultation, and you must exhaust all options before terminating.  IF your Employment agreement does not have 4 weeks’ notice you must also give 4 weeks’ notice for termination related to vaccination under changes to the Employment Relations Act.

 

In a nutshell - treat people as you would like to be treated.

Treat people with respect, follow a correct process and try to manage it so that everybody keeps their dignity. That's really important and it’s part of the good faith obligation of an employer.

 

Helpful resources for you:

Ministry of Business Innovation and Employment website

NZ  Covid 19 website

The Human Rights Commission website

Worksafe website

and of course, your friendly lawyers!

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