It is hard to believe it is almost a year ago New Zealand went into its first lockdown. However, with the COVID 19 vaccination rollout poised to be extended to all New Zealanders, we are on the cusp of a new phase in the fight against the virus.
Key issues will be whether an employer can legally require an existing employee to be vaccinated against COVID 19, and whether employers can require employees (or potential employees) to advise their vaccination status.
These issues are particularly complex, and will require balancing health and safety obligations with an individual’s right under the Bill of Rights Act 1990 not to be subjected to medical treatment (the vaccination) without consent, or the right under the Privacy Act 2020 not to have personal information collected (whether a person is vaccinated) unless that is for a lawful purpose connected with the employer. The usual obligations of good faith and consultation will also apply.
An employer’s obligation to take reasonably practicable steps to keep safe employees and others in the workplace (other people who work there, and anyone else in the workplace including customers or clients) will likely be critical to the assessment being made.
In our view, a vaccination is unlikely to be a mandatory requirement for existing employees, but other measures may have to be taken if an employee is not vaccinated or cannot prove that they are vaccinated. Those measures will vary according to the nature of the employment.
The situation will be different with recruitment of new employees to roles where there is a higher health and safety risk, either to the employee or to others in the workplace. In such cases it may be reasonable and appropriate to make proof of vaccination a pre-requisite of employment.
Overall, we suggest that employers carefully consider their own circumstances before formulating policies about vaccination. There is no issue with encouraging and enabling employees to be vaccinated, and that will likely be the best course of action in the first instance. We are always available and happy to provide advice on your particular circumstances.