Employment law still applies to all employment relationships, despite COVID-19 related lockdowns. Both employers and employees must continue to act in good faith and meet minimum legal obligations.
Can an employer require an employee to get a vaccine?
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No, an employer cannot require an employee to be vaccinated, as under the New Zealand Bill of Rights Act 1990 (‘NZBORA’) every person has the right to refuse to undergo medical treatment, which includes receiving vaccines.
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In the first instance, the health and safety reasons (COVID-19 exposure risk) of the business must be identified and supported through a health and safety risk assessment which must be done in conjunction with employees, unions and other representatives. WorkSafe has provided some general guidance on risk assessments here:
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However, in some circumstances an employer can require a specific job role to be performed by a vaccinated person for health and safety reasons, for example where there is a high risk of contracting and transmitting COVID-19 to others.
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Some work done at the New Zealand border is covered by the COVID-19 Public Health Response (Vaccinations) Order 2021 (‘the Health Order’) and can only be done by vaccinated workers. As such, individual health and safety risk assessments do not need to be done for these businesses.
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Does an employee have to tell their employer whether they have been vaccinated?
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No, an employee does not have to tell their employer their vaccination status.
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However, if an employee refuses to disclose their vaccination status, an employer may assume the employee is unvaccinated (and must tell the employee of this assumption before acting on it).
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Note that employers must protect an employee’s personal information regarding vaccination status and cannot share the information without consent.
Can an employer dismiss an employee if they refuse to get vaccinated?
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Generally, we would expect it will be difficult for an employer to justify dismissing an employee on the basis of them being unvaccinated in almost all cases.
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In some limited circumstances, for example where a worker is border worker subject to the Health Order, it is possible an employer may be able to justify making an employee redundant on the basis that the employee is unvaccinated and can no longer perform their role (as the Health Order requires that the role be done by a vaccinated person). However, the employer would still have to go through a proper redundancy process, including considering employee feedback, alternative duties, and options for redeployment before making the decision to dismiss the employee.
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