COVID-19 vaccinations and legal requirements: Can I make my employees get vaccinated?

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With COVID-19 vaccinations becoming more readily available, many employers may be wondering if they can make sure their employees are all “vaxxed up”. But can you legally require your employees to get vaccinated?

Can an employer require their employees to get vaccinated?

Employers cannot reasonably require employees to be vaccinated unless their role is at a higher health and safety risk of exposure to COVID-19, or otherwise deals with vulnerable people who would be at a higher risk of illness (such as a border worker, or hospital staff member). A health and safety risk assessment will help you to determine if this is the case for each role in your workplace. The risk assessment should be carried out in consultation with employees and their representatives.

Office workers, for example, will likely not be at an increased risk, and so an employer cannot require them to be vaccinated. For other roles, this will depend on the risk profile for the role.

To find out more about risk assessments, take a look at the WorkSafe website: https://www.worksafe.govt.nz/managing-health-and-safety/novel-coronavirus-covid/assessing-whether-a-specific-role-needs-to-be-performed-by-a-vaccinated-worker/

If the role is safety sensitive (i.e. at an increased risk for exposure and spread of COVID-10), employers should implement a policy designating the roles safety sensitive, and requiring vaccination for employees filling those roles. Employees should be consulted before the policy is implemented.

Can an employer ask a job applicant if they are vaccinated?

Unless the role is at an increased risk for exposure and spread of COVID-19, it is legally risky to ask for vaccination information. The Privacy Act requires employers to have a lawful purpose for collecting personal information, and if there is no heightened risk, it will be harder to show that there was a good reason for collecting the information.

If the role is safety-sensitive, then you may be able to collect vaccination information, and make it a requirement of the role that applicants are vaccinated before beginning work. We recommend you seek legal advice before doing this to avoid any legal repercussions.

Employers could also open themselves up to the risk of a discrimination claim if a job applicant or employee has a medical or religious reason why they cannot be vaccinated, and feels they are being treated differently because they aren’t vaccinated.

Always get legal advice before making changes in your workplace

If you are looking at adding vaccination requirements to your employment agreements or workplace policy, or are having an employment related dispute, contact Gaze Burt’s employment team to give you specific legal advice.

shelley.eden@gazeburt.co.nz
ruth.katsui@gazeburt.co.nz
beth.smith@gazeburt.co.nz
daniel.josephs@gazeburt.co.nz

This article is not intended as legal advice. We recommend you seek legal advice about your specific situation before implementing any changes to your workplace.

mm
Ruth Katsui
Solicitor

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