Coronavirus and the Law

Coronavirus and the Law

Vaccinations and Employment

When are COVID-19 vaccinations required at work?

Vaccination against COVID-19 is required for jobs or workplaces that are high risk. These are workplaces where there is a higher risk of people getting or infecting others with COVID-19.

Vaccination can be required for two reasons:

  • your work is covered by a government mandate. This means the government has decided your work is high risk.
  • your work is covered by an employer mandate. This means the business or organisation you work for has done a risk assessment and decided the work is high risk. See the bottom of this section for more information about risk assessments by your employer.

You can view the government mandate jobs here: www.covid19.govt.nz/covid-19-vaccines/vaccinations-and-work/mandatory-vaccinations-for-workers/

Can I lose my job if I’m not vaccinated against COVID-19?

People can lose their jobs if they do not get vaccinated. If it’s legally required that your job is done by someone who is vaccinated, and you do not get vaccinated, you might lose your job. It will be legally required if your job is under a government mandate or an employer mandate. See above, “When are COVID-19 vaccinations required at work?”.

Before you lose your job, your employer must talk to you about your options. You could talk to your boss to see if it’s possible to change your work arrangements on a temporary or permanent basis. For example, so that you only work from home, move to job in the business where you don’t need to be vaccinated, or take some form of leave.

If you and your employer agree to change any of your work arrangements, you might need an updated employment agreement.

If you are a union member then your union representative could also be involved in the discussion.

Can I get a COVID-19 vaccine exemption?

There are two ways to get an exemption but very few people will qualify:

  • you can apply for an exemption for medical reasons, or
  • your employer can apply for an exemption for you.

You can apply for an exemption if a medical practitioner confirms that you cannot physically tolerate a vaccine. This will only be granted if your medical condition is listed in the Ministry of Health rules. There are very few people who are eligible for this. To get a medical exemption your doctor or nurse makes the application for you. The Ministry of Health then decides if you are eligible. You can find out more here: www.covid19.govt.nz/covid-19-vaccines/vaccinations-and-work/mandatory-vaccinations-for-workers/#exemptions-and-exceptions

Your employer can apply for an exemption if it’s necessary to avoid significant disruption to the business. Significant disruption would usually happen because the business or organisation cannot replace you with a vaccinated worker.

All exemptions are temporary. An exemption only lasts until you can medically tolerate a vaccine or the employer solves the disruption problem (for example, they find a worker to replace you).

Will I be fired if I don’t get vaccinated?

Even if it’s a legal requirement that you are vaccinated due to your job, being fired is the last resort. Your employer should consider changing your work arrangements first. If that’s not possible, your employer could legally fire you.

If your boss fires you they must follow a fair process which would include:

  • providing you with the correct amount of notice (4 weeks or more paid notice), and
  • paying you the right amount in your final pay.

My employer has fired me for being unvaccinated, is there anything I can do about it?

Yes. Even if your role must be performed by a vaccinated worker (i.e. is covered by a government or employer mandate), you could still raise a personal grievance. See “Employment: Resolving problems” in the Community Law Manual for more information on personal grievance process.

A personal grievance could be raised if there firing was unjustified. It will be unjustified if alternatives were available.  For example, if your employer could move you to a safe location or change your role so that it’s not high risk.

If you don’t think the employer followed a fair process, you might be able to challenge it based on procedural unfairness.  Unfair processes usually occur when an employer does not give you enough time and information to participate in the decision making process.

I’m not comfortable working alongside people who are unvaccinated. What can I do?

If you feel uncomfortable or concerned about working beside unvaccinated people, you could:

  • refuse to work on the grounds that it would be a serious risk to your health. However, this will usually only apply if the workplace is high risk. If a COVID-19 risk assessment has been done, and the workplace is not high risk, you probably cannot refuse to work.
  • request a change to your work arrangements. For example, to work at a different location or time to unvaccinated colleagues.

Your employer doesn’t have to accept your request, but they do have to consider it.

Is my vaccination status private information?

Yes. This means the Privacy Act 2020 must be followed when your employer is collecting, storing and sharing this information.

Your employer must not pass on information about your vaccination status to others without your consent or for the reasons allowed by the Privacy Act.

Do I have to tell my boss if I’m vaccinated?

Employers can ask you what your vaccination status is if they need the information for a lawful purpose. A lawful purpose would be:

  • To make sure only vaccinated staff are doing work that the government has said only vaccinated people must do (For example, teachers and border workers)
  • To make sure all staff are vaccinated if the business has chosen to be part of the traffic light system which uses vaccine passports (For example, Some cafés or hairdressers)
  • As part of a COVID-19 risk assessment
  • After a risk assessment is completed and the assessment shows that people doing the job must be vaccinated (For example, a social worker who works with vulnerable people).

If you choose not tell your employer or show them evidence (for example, a vaccine passport), your employer can treat you as though you are unvaccinated. This means they might see you as a health and safety risk. They may be able to treat you differently to vaccinated workers or put extra safeguards in place (such as making you work from home).

Your employer should first tell you they will treat you as unvaccinated and what that means for you.

If you are required to be vaccinated for your job, your employer should give you some paid time off to get vaccinated. If you cannot work while you recover, the employer should consider giving you special paid leave.

If you can’t work because you’re still deciding whether to get vaccinated, your employer doesn’t need to pay you. However, they may agree to pay you special leave or annual leave if you ask for it.

Can a business or organisation require vaccinations before it does a risk assessment?

A business or organisation under a government mandate does not need to do a risk assessment to require vaccinations.

On the other hand, A business or organisation that is considering an employer mandate must do a risk assessment before requiring employees to get vaccinated. Sometimes they will need to know your vaccine status in order to complete a risk assessment.

When is a risk assessment necessary?

If a business or organisation does not come under a government mandate but wants its employees to vaccinated, they need to do a risk assessment. A risk assessment helps the business or organisation decide whether its workplace or the jobs people do create:

  • a high risk of a people getting COVID-19; or
  • a high risk of infecting others with COVID-19.

The risk assessment may show that vaccination of workers is a reasonable and necessary step to prevent the risk of catching or spreading COVID-19. This may relate to some or all workers.

The risk assessment may also show that customers, contractors, and suppliers are at high risk from visiting the workplace. In these cases, it will be lawful to require a vaccine pass from all people visiting the workplace.

Does a businesses or organisation have to talk with their employees before carrying out a risk assessment?

Yes, they must consult with employees before and during the assessment. If your workplace is part of a union, your employer mast talk with them too.

If you are a union member then your union representative can also be involved in the discussion.

What if I don’t agree that I need to be vaccinated to do my job?

If you think your role is not high risk and shouldn’t require a vaccination then you could use the free Early Resolution Service to try resolve the issue. Visit www.employment.govt.nz/resolving-problems/steps-to-resolve/early-resolution/

If that doesn’t work and you think your boss’s decision if unfair, you could raise a personal grievance. See “Employment: Resolving problems” in the Community Law Manual for more information on personal grievance process.

I heard the government is bringing out a new risk assessment tool. Does my employer have to do another risk assessment using that tool?

No. If your workplace has already done a risk assessment it will still be valid. The employer does not need to do another one.

Where can I go for more support?

If you need legal support or clarity on what you’ve read here, please contact a Community Law Centre or other legal advice service.

For up-to-date information about traffic light settings and boundaries, please go to www.covid19.govt.nz

 

 

 

 

 

 

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