Mandatory Vaccinations - What you need to know

Mandatory COVID-19 Vaccinations are a new area of employment law and of increasing interest by employers and employees in New Zealand and around the globe. As New Zealand ramps up its COVID-19 Vaccination campaign workplaces play a key responsibility in ensuring health and safety, and it becomes essential for employers to wrap their heads around this law particularly given recent changes and Government announcements.

Case law is in its infancy and as such, employers must tread with due caution when considering the issue. The recent COVID-19 case at NZ Customs Service was a great example of an employer that followed good process in mandating workplace vaccines, GF v New Zealand Customs Service [2021] NZERA 382. In this case, a border worker was dismissed from refusing vaccination despite Public Order.

What employers need to know about mandating vaccines:

1.       Risk assessments

The risk assessment undertaken is a key step in the process in ensuring that the test of justification for mandatory vaccinations is met. While we are waiting the Work Safe framework to assist employers in undertaking workplace risk assessments, at a high level a role-specific assessment should consider the following questions:

• How much exposure/risk of catching COVID-19 does this role have?

• Are employees and customers at risk of passing COVID-19, if contracted, onto vulnerable people?

• Are there measures in place to mitigate the risk of catching COVID-19 and what measures could be put in place?
  For example: are there contact tracing measures in place?

2.       Good process produces good outcomes

An employer will never be criticised for being too consultative with their employees - but you will be if you aren’t!

As with any decision in Employment Law, the decision is only as good as the process that is followed. Be fully engaged with employees, consult with them role-by-role to ensure you have covered a robust risk assessment procedure.

3.       Requesting proof of vaccination status

When requesting proof of vaccination status, the Privacy Act must be carefully considered as employees do not have a duty to tell their employer if they have been vaccinated or their reasons should they choose not to be vaccinated.

If the role is not assessed as being at risk and therefore does not have a requirement for mandatory vaccinations, an employee does not need to disclose their vaccination status as there are no grounds to do so. 

To wrap up:

Grounds for mandating vaccine policies should be treated very carefully and careful consideration is needed to protect employee rights following the Human Rights Act and Health and Safety at Work Act. Like all things, there is a balance of interests involved.

Any employer looking to implement mandatory vaccinations should consult with an employment lawyer. Our Employment Law Partners - Martelli McKegg did a great webinar on this topic, which can be found here.