Updated: Jun 21, 2021
In this blog, we discuss some of the considerations employers need to take on board when considering whether they should require staff to have a COVID-19 vaccination and how to handle staff who may be considering travelling under the extended bubbles with Australia and the Cook Islands.
Now that New Zealand is rolling out COVID-19 vaccinations, you may well be thinking about whether you may need to require your staff to have the vaccination.
The Ministry of Health has information on when your staff can expect to be invited to have the COVID-19 vaccination. The priority continues to be front-line staff working in Managed Isolation Quarantine (MIQ) locations, at International Borders, and working with vulnerable persons.
When it comes to your staff and having the COVID-19 vaccination, whether you can require them to have the vaccination will come down to the work they do and the circumstances of that work. You need to discuss the issue of vaccinations with your employees and their representatives as early and openly as possible. The national roll out of the vaccination programme does not excuse employers from their obligations to deal with employees in good faith, including consulting and being communicative. The Health and Safety at Work Act (HSWA) also applies to conversations about workplace vaccination issue.
Keep in mind that the Bill of Rights gives a person the right to refuse medical treatment, including vaccination, though this right can be subject to justified limits.
The Ministry of Business Innovation and Employment (MBIE) have recently advised that most workplaces will not require their employees to be vaccinated. If you are considering introducing a vaccination policy or amending your employment agreements to include COVID-19 vaccinations, then you need to follow the correct procedure. This includes consulting in good faith on your proposal, stating why you need the change you are proposing, and being open to feedback on the proposal. There is excellent guidance on what to do on MBIE's website.
If your staff are considering overseas travel, they do have an obligation to deal with you in good faith, meaning they must not mislead or deceive you, and both parties must be communicative and responsive when dealing with leave issues. Under the HSWA employees must comply with any reasonable policy or procedure or instruction that allows you, as the employer, to comply with the HSWA.
If the employee is travelling overseas, they are at a higher risk of COVID-19. Employers have the right to ask employees about the reason or purpose for their leave, however employees are not obliged to disclose their personal information. An employer may withhold consent to an employee's request for leave, but must not be unreasonable when it comes to declining the request. Any refusal must be done in good faith and you cannot simply decline the leave request because the employee is planning on going overseas.
You should discuss and consider the risks based on where the employee is travelling and make a decision on a case-by-case basis. Unless you can demonstrate the travel would create a significant risk to the workplace, and there are no alternatives, it is unlikely a refusal would be deemed "reasonable."
You should discuss with the employee what their contingency plans are if the border is closed or a lockdown occurs where they are travelling. The employee may be able to work remotely and therefore mitigate the risk to the company. Discuss what leave payments they may be able to access if they get locked down and or have to go into managed isolation. Will they have annual leave they can use? If they can work remotely, then they are no longer on leave and should be paid as normal for each hour worked. If they can do work remotely and have no leave, the employee may not be entitled to pay for any additional period of absence due to a lockdown or being in managed isolation.