By: Amanda Douglas, Bethany Entwistle
As we know, effective immunisation of our population is one of the leading public health measures for reducing the impact of COVID-19 in New Zealand.
 
Increasingly, employers are considering the implications of vaccines and how their workforce will be affected.  Some are questioning whether they can make vaccines compulsory or impose different working conditions for unvaccinated employees.  Others question whether they have a right to ask an employee about their vaccination status at all.

These questions raise several privacy and legal issues which we address in this article.  

Does the law prevent me from asking staff about whether they have been vaccinated?

New Zealand law recognises that the privacy of personal information should be protected.

The collection, use, and disclosure of personal information is governed by the Privacy Act 2020 (the Privacy Act).  Personal information which constitutes ‘health information’ generally has a higher level of privacy attached and is governed by both the Privacy Act and the Health Act 1956 (the Health Act).

An employer is within their rights to ask about an employee’s vaccination status but only if there is a genuine need for the information.  For example, if knowledge about whether someone has or hasn’t been vaccinated is needed for that person to perform their role safely, an employer would have a strong case for needing to ask the question.

Of course, there are certain categories of workers who may be more reasonably asked to provide information about their vaccination status, including those working at MIQ facilities and flight crew who may come in contact with infected passengers.  Otherwise, employers will need to carefully consider whether they have a valid need to know.

Even if asked, an employee has the right not to disclose this information.  If they choose not to disclose their vaccination status, the employer may treat them as if they have not been vaccinated, however, they should inform the employee that they will make this assumption.
 
Importantly, an employee’s vaccination status should not be shared with others without their permission.  This means that employers who have been asked by staff about whether they can safely sit in the shared cafeteria for lunch, for example, will not be able to disclose that certain employees have or have not been vaccinated unless they have permission.  Likewise with clients, care needs to be taken around the implications of any general information the employer may share.

Can an employer require an employee to be vaccinated and dismiss them if they choose not to be vaccinated?

Employees Subject to the Health Order

Currently, the Government issued COVID-19 Public Health Response Vaccination Order 2021 (Vaccination Order) provides an assured basis for employers to require employees covered by the Vaccination Order to be vaccinated.

This applies to ‘affected persons’ who include border workers working at managed isolation and quarantine facilities, airports, and ports.  Employees with a higher chance of being exposed to and transmitting COVID-19, such as healthcare workers, are not currently captured by the Vaccination Order, although the Government has signaled that this may change.

Following the Employment Relations Authority’s recent decision that Customs New Zealand (Customs) was justified in dismissing an unvaccinated border worker, ‘affected persons’ should be aware that refusing to be vaccinated could result in serious employment consequences such as dismissal.[1]

In that case, the Employment Relations Authority held that Customs had undertaken the appropriate health and safety risk assessments and had every right to determine the position could only be safely undertaken by a vaccinated worker.  The border worker argued her right to refuse medical treatment under the New Zealand Bill of Rights Act 1990 and said her stance on vaccination did not impact any other person in the workplace.  Customs and the Authority disagreed and stated that an employee has a duty to take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons.

Employees Not Subject to the Health Order

WorkSafe New Zealand has stated that employers can require specific roles to be performed by vaccinated employees only, provided they have completed a health and safety risk assessment to support their findings (in collaboration with the employee and their representatives).  The assessment includes two factors:
  1. The likelihood of the employee being exposed to COVID-19 while performing the role.  The employer would need to consider, for example:
    1. Is regular testing mandatory?
    2. Where and how would exposure occur and for what duration?
  1. The potential consequences of that exposure on others (such as community spread).  The employer would need to consider whether the role involves regular contact with people who are at high risk of severe illness if they contract COVID-19.

If both factors are satisfied, the employer would have grounds to successfully argue that the role needs to be performed by a vaccinated person.  Although we note that this scenario in relation to an employee not captured by the Vaccination Order has not yet been tested in a New Zealand court or by the Employment Relations Authority.
 
For this reason, we advise obtaining specific legal advice on your individual circumstances.

Can an employer impose different working conditions for unvaccinated employees?

If an employee who refuses to be vaccinated is not an ‘affected person’, an employer might question whether different working conditions may be imposed for that particular employee.

From a workplace safety perspective, although an employer and other workers might be uncomfortable working with someone who has not been vaccinated, unless they’re in a role where vaccination is needed for health and safety reasons work is unlikely to be unsafe just because it is done around unvaccinated workers.  That said, assessment will depend on the circumstances of each case.

As noted above, to protect against unauthorised disclosure, employers must ensure personal information held about an employee is protected by such security safeguards as are reasonable in the circumstances.

Imposing different working conditions could very well result in the unwarranted disclosure of an employee’s vaccination status, constituting a breach of privacy and potentially raising issues of discrimination.

Can employees with underlying health conditions request special work arrangements?

It is understandable that employees with medical conditions that prevent them from being vaccinated, or from being around unvaccinated people, may wish to arrange special working arrangements such as working from home or different work hours. 

Employers should accommodate various work arrangements where possible.  Employees should be aware that it may be difficult for employers to meet their particular needs without inadvertently disclosing medical information or their vaccination status, and that speculation from other workers may be inevitable.

If you have any concerns about your privacy, employment, or legal obligations as an employer, please contact us for assistance, by email to amanda.douglas@wynnwilliams.co.nz or bethany.entwistle@wynnwilliams.co.nz.
 
[1] GF v New Zealand Customs Service [2021] NZERA 382.
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