The roll-out of the vaccine for Covid-19 is raising questions when it comes to the rights of employees and employers.
This is new territory and can cause confusion if you haven’t been following the latest updates to New Zealand employment legislation.
In a recent NZ Herald news article the Employment Relations Authority case confirmed the ability of an employer to dismiss an employee for refusing to get vaccinated. In this instance, the role was subject to a Health Order and there were no other redeployment opportunities available for that worker.
There are currently two categories of roles that require a person to be vaccinated. They are:
- Where the role falls within a current Health Order which requires vaccination i.e. front line workers.
- Where the business has assessed the role as requiring a vaccinated worker to comply with health and safety obligations.
The first category is clear-cut. However, the second category needs to be determined by each business.
How does a business determine this? What should you do if you identify a role that requires a vaccinated person to carry it out? We’ve made it easy by outlining the 4-step process you should follow.
1. Undertake a Health and Safety (H&S) Risk Assessment
The best place to start is with a H&S Risk Assessment of each role in your business. This will ensure your workplace follows relevant H&S requirements when making decisions around whether a person in a particular role requires vaccination or not.
As an employer, you cannot require any individual to be vaccinated, although you can insist that certain jobs be done by vaccinated workers. As a company, you should be able to show that your risk assessment shows it is fair and reasonable, and supports your legal requirements to provide a safe working environment for your staff, to have the person in that role vaccinated.
2. Roll-Out an Occupational Vaccination Policy
If you identify a role (or roles) that require a person to be vaccinated, then it’s important to implement an Occupational Vaccination Policy so that all staff have a clear understanding of the company’s rules, regulations and roles that are affected. This Policy should detail your requirements around all vaccinations in the workplace including Covid-19, polio if travelling, tetanus, etc
3. Update your Employment Agreements
If you determine that a role requires a person to be vaccinated for H&S reasons, then you should update your Employment Agreements to capture this. Include this requirement as a condition of their employment, and, for persons already employed by you, conduct a consultation process with them.
4. Adapt your Employment Application Form (EAF)
If you are hiring for a role in your business that requires a vaccinated worker, you can ask candidates if they have been vaccinated as it relates to their ability to perform the job (including safety). In this instance we recommend adapting your Employment Application Form (EAF) and ensuring the candidate completes the EAF prior to their interview with you so you can question them further at the interview if needed.
With all of these steps you must ensure you protect an employee’s rights, and be mindful of the Privacy Act. A person’s vaccination status is personal information. As a business you might want to reassure your customers, clients, or colleagues that you have a fully vaccinated workforce however, as mentioned in a Stuff news article “Employers need workers’ consent to disclose their vaccination status.”
You should also not be asking candidates or employees for their vaccination status if the candidate is not applying for, or the employee does not hold, a role which requires vaccination.
At Freerange Works we have developed an Occupational Vaccination Policy template clause relating to vaccinations for Employment Agreements and questions to include in your Employment Application Form. If you require any of these, or would like support to undertake a H&S Risk Assessment, get in touch.
We are a registered service provider with the Regional Business Partner Network so you may be eligible for Government Funding towards our services.
Contact us at hello@freerangeworks.co.nz or 0800 04 FLEX.
