Vaccine FAQ’s
The Law is constantly changing when it comes to vaccines in the workplace, further mandates are being introduced at short notice, and for many in the construction industry, the list of customers, contractors and suppliers, only allowing those vaccinated workers onsite is growing.
These are all new matters for Employers, who have a difficult job at the moment, juggling various legislation, including the Health and Safety at Work Act 2015, the New Zealand Bill of Rights Act 1990 and the Employment Relations Act 2000 - it’s no easy feat!
We appreciate there are many ‘’no jab no job” articles and news pieces circulating – it’s easy to feel somewhat consumed by too much vaccine chatter. As much as we may try hard to avoid it, we can’t – vaccines in the workplace are our new reality, one way or another.
To save you some time, below are our thoughts on some commonly asked questions when it comes to vaccines in your industry:
Can I ask my team members for their vaccine status?
Yes, you can, although we recommend you set out your reasons why e.g. to accommodate requests from sites for vaccinated employees. Your team members are entitled not to disclose their vaccine status to you, if they do not want to.
When asking your team for their vaccine status, you should make it clear that if they do not provide this, or fail to respond to you, you will assume that they are unvaccinated.
Although you may have a reason to ask for your team’s vaccine status, you do not necessarily have a right to ‘dig deeper’ and ask questions why someone may not be vaccinated – we recommend avoiding these types of conversations.
Can you share your team members vaccine status?
A person’s vaccination status is protected personal information under the Privacy Act 2020. Unless you have their permission, you cannot share or receive this information.
If you haven’t yet, it’s important you circulate some communication to your team to give them a ‘heads up’ on the need to accommodate requests by sites, or customers for vaccinated workers.
We recommend you ask your team for their vaccine status, and if you can share this with your customers/suppliers/contractors or sites that require this. Reassure them that you would keep this information secure.
Here is a snippet of some language you may wish to adjust to suit: “Please note, we would collect, store and only share such information in accordance with the Privacy Act 2020. Your vaccination status would be kept securely and would be disclosed only to Senior Management and to customers or suppliers who legitimately require the information to assess their own health and safety risks or to meet mandate requirements”.
How do I store my team members vaccine information?
We recommend you keep a vaccine register in a safe and secure space, which contains your employee’s vaccine status, and proof of vaccine if your employee grants you permission to this.
We are finding an excel spreadsheet is the easiest way to record this information. If you would like a copy of our template vaccine register, contact our team.
Can I impose a mandatory vaccine requirement within our business?
Its not that simple – for employees who are in a position that is covered by the Government Mandates, as recorded in the COVID-19 Public Health Response (Vaccinations) Order 2021, then they are required by law to be vaccinated in accordance with the Order to be able to fulfil and perform their position. An employer still must follow proper process, act in good faith and consult should an employee choose not to be vaccinated, despite the Order.
For all other workplaces, not covered by the Order or Government Mandates, businesses can require that a specific position be performed by a vaccinated person, only if following a proper risk assessment, the work is deemed high risk.
You must have first done a health and safety risk assessment to support such a requirement and involved your team, union etc in the risk assessment process. Just because a site deems that only vaccinated people may attend, does not make it immediately high risk, you must do your own assessment.
To carry out a risk assessment for exposure to COVID-19 you need to consider two main things about the role:
the likelihood of a workers being exposed to COVID-19 while performing the role, and
the potential consequences of that exposure on others (e.g. community spread).
You should also consider whether other public health measures (eg physical distancing, PPE usage) can minimise the risk of exposure and transmission of COVID-19. For support with undertaking a risk assessment, see the Worksafe resources here.
Any such process must be fair and reasonable, and carried out in good faith following proper consultation. Employment Law still applies, if employees are doing work that can only be done by a vaccinated worker, but are not vaccinated, you will need to address any practical barriers to accessing vaccination (e.g. if travel or time off work is needed).
You should also consider options, such as changing work arrangements, alternative duties or leave. If leave is used, this must be agreed, and we encourage this be paid. You may agree to a negotiated end of employment, but individual dismissals are unlikely to be justifiable in almost all cases, based on current circumstances and guidance. You can negotiate with your Employees’ variations to existing conditions of employment to require vaccination.
Can I require that new recruits must be vaccinated?
Yes, you can require vaccination as a condition for new employees, but this must be reasonable for the position, and your risk assessment should support this. If you are recruiting for a position that is deemed high risk, then you may wish to ask for a person’s vaccine status as part of your recruitment process, and within your application form. However, again the applicant does not have to disclose this information to you, and you do not wish to be seen to be discriminating on the basis of vaccine status.
We appreciate the guidance around vaccines in the workplace is constantly changing, and we expect some further updates around mandatory four week notice periods for those released due to vaccine mandates, and an updated risk assessment to be made available by the Government soon. We are here to help guide you through the process – whether it’s a risk assessment, Covid-19 Policy, a quick vaccine question or simply someone to logic test your thinking with. We are dealing with these matters on the daily and are here to support you.
You may also be eligible for funded support up to the value of $7k, through the Regional Business Partner Network – talk to our team about this.
Our team can continue to be reached on 0800 HR FOR U, or you can contact our team here: https://www.peoplepassion.co.nz/contact-us
Paige Hellier
ER & Legal Consultant