Managing COVID-19 vaccination status at work: everything you need to know
Is it legal to make vaccines compulsory in NZ?
The COVID-19 vaccine.
We’re getting a lot of questions about this at the moment, mostly relating to compulsory vaccinations - is it OK to make the shot mandatory? Does it breach someone’s privacy to ask their status? What about people who refuse?
Encouraging your team to get the vaccine is an awesome thing to do, but there is a lot of contradictory information out there regarding what is or isn’t legal for an employer. You want to keep your people safe, but can’t breach employment or privacy laws, but can’t force someone to get medical treatment, but you do want to know their status… and so goes the cycle!
So, to help clear the air in this area, here’s our go-to guide for all your common vaccination questions. In this article, we’ll cover:
Can I require team members to be vaccinated?
How do I find out if my team are vaccinated?
Why can’t I make vaccination compulsory?
How do I encourage my team to get vaccinated?
How do I deal with people who refuse to get vaccinated, or who won’t make public their status?
My clients want me to confirm my staff are vaccinated - what can I do?
Can I ask questions about vaccination during job interviews?
Summarising everything we’ve just learned
Can I require team members to be vaccinated?
Before we continue, there are two questions you need to ask yourself:
Do you employ people in roles mandated by a government Health Order as requiring a vaccination? Currently this includes specific roles such as: (a) border workers, (b) people in the health and disability sector, or (c) people in the education sector?
Have you carried out a proper health and safety assessment on the jobs in your business relative to COVID-19 risks? Additionally, did that assessment conclude that individuals in certain roles need to be vaccinated?
If the answer to either of the above is ‘yes’, you may be able to establish mandatory vaccinations for the applicable roles. In this article, we’ll call them ‘Mandatory Categories.’
Note: this doesn’t mean those people must get vaccinated.
You can’t force someone to get vaccinated (more on this below.) But, it means you may have grounds for changing or ending their employment if they refuse.
However, be careful when terminating any employee. Can you replace them? You’ll need to look at other ways to encourage and enable vaccinations in your team (more on this also below.)
What does the law say?
Certain categories of employees covered by Health Orders must be vaccinated. But, this covers only very few types of high-exposure roles, such as border workers, healthcare workers, and teachers.
And if my employees don’t fit those categories?
Employers cannot legally make vaccines mandatory unless they show, through a health and safety risk assessment, that there is a high risk of their team contracting or transmitting COVID-19 during the course of their work.
You will need to consult with your people if you take this approach, as you would for any change process. And, whatever you do, continue to follow good employment law practice.
How do I find out if my team are vaccinated?
This is an easy one - ask them!
But… consider doing so politely. You can request this information but you cannot legally compel someone to tell you their status unless they’re in one of those Mandatory Categories. Even then they could still refuse.
So, be careful and be kind.
Why can’t I make vaccination compulsory?
Forced vaccinations
New Zealand has strict laws in place around people’s rights, and discrimination against others.
The Bill of Rights Act states that people have the right to refuse medical treatment. As a result, vaccination is legally voluntary - no one can be forced to get one.
Discriminating against employees based on vaccination status
You also can’t treat employees who choose not to get the vaccine differently - again, unless you’re employing someone in a role that falls under a Mandatory Category.
The Employment Relations Act, bolstered by the Human Rights Act, lists religious beliefs, ethical beliefs, disability and political opinion as prohibited grounds regarding discrimination. It’s likely that vaccine refusal could fall under a number of these.
That said, it hasn’t been tested in a New Zealand court of law yet. But, here at Openleaf we’re expecting to see these grounds for discrimination upheld, with the law adjusting elsewhere to make room for COVID-19 vaccinations (no judge will want to set a precedent that could risk a legal impact on other rights within those statutes.)
How do I encourage my team to get vaccinated?
You’ll need to promote and encourage vaccination in a constructive way, using positive reinforcement. Try to force someone’s hand and you may get pushback. After all, people generally don’t like being told what to do or what to believe.
Here are some ideas:
Carry out a health and safety assessment so you are clear on the situation within your business. This will form the basis of our next point.
Create a company vaccination policy. Get really clear on what you stand for in regards to vaccination, and why. Build your policy based on the risks found in your assessment, and communicate honestly about these results. Don’t do things in the shadows, or people may see it as dishonest.
Co-create in-office and remote working practices with impacted people to gain buy-in and engagement to make arrangements work well.
Offer your team time off to go and get it done. Try to be flexible, to allow people of different needs and mobility to travel to get their shot, remembering that some individuals suffer side effects for a few days and may feel run down afterwards.
Publicise vaccine-related events coming up in your area, such as mobile vaccination clinics, Super Saturdays or pop-up venues.
Ask people to confirm when they have their first and second jabs. But remember, this can’t be a requirement so ask politely, be respectful, and explain why.
Respect individual privacy. An individual’s vaccination status is personal information and should be appropriately protected as per the Privacy Act 2020. If you are requesting this information, your people should be clear on why it is requested, and when/how this information may be used or shared. Along with other personal information about your team this should be stored securely and only retained whilst there is a reason to have it.
Visibly encourage and celebrate vaccinations to support the health and safety of the whole team, and their whānau. For starters, managers across the business could talk about it in a positive way, and mention it in daily communications. You could also try public certificates or other rewards when someone gets vaxxed. Rewards and recognition can go a long way to sending a positive message to others. It’s that ‘social proof’ we all desire before making a big decision. However, seek consent form each individual before making their status public.
Talk kindly and openly with anyone who has questions or reservations. Remember that we all have different opinions and come from different backgrounds, and we’re each entitled to those without being discriminated against, condescended or insulted.
If anyone is uncomfortable, talk about it openly, honestly and together. Try to come up with a mutual solution that is fair, reasonable and non-discriminatory.
How do I deal with people who refuse to get vaccinated, or who won’t make public their status?
Unless they are in a Mandatory Category, they don’t have to get jabbed and don’t have to tell you. Trying to force them may breach their rights, so be careful taking a severe approach here.
This is where you may choose to look at other options, such as redeploying them within the business, changing their work location, or - at a last resort - ending or reducing their employment. No matter what, you still have to go through a proper process and treat your people right. You must also balance this with your specific obligations to the health & safety of your team, customers, and community as informed by your risk assessment.
Your vaccine policy will help here.
If you’ve built a vaccine policy as we advised above, this will help.
You could consider clarifying in that policy that you will reserve the right to treat people who won’t communicate their status with you the same as a non-vaccinated team member. This would allow you to be upfront about it and apply the same rules to everyone in the business, so no one is surprised and no one will feel unfairly picked on.
Remember that people who refuse the vaccine are still your team.
Regardless of someone’s beliefs, they’re still your team. They’re still trying to do their job, and deserve compassion and respect just like any other colleague.
They may have their reasons for not yet being vaccinated, which may be very important to them. You might not agree, but they’re still entitled to that opinion and you must respect it - while at the same time, being clear about your policy and the needs of the business. Separate the issue from the person.
What to do with unvaccinated colleagues
One thing we’re starting to see is companies allocating non-vaccinated staff to exclusively work from home - no in-office meetings, no travelling to clients, no hot desking.
Read more: Examples of this in action (NZ Herald)
See that local businesses already doing this aren’t firing people - they’re using an alternative workplace to keep them separated while unvaccinated. In this way, unvaccinated people are still part of the team and still contributing positively to the business, but the company isn’t compromising its vaccine position.
My clients want me to confirm my staff are vaccinated - what can I do?
Get clear on your vaccination policy
Once again, step one is to get clear on your vaccine policy, and why you’ve made the decisions you’ve made. Be ready to communicate this to customers, and think about how to go about achieving this. In general you can share your policy with your clients, but not the status of any individual (or group of individuals if this allows them to be identified).
Additionally, make sure it’s communicated to your team. As we discussed earlier, they should know your stance on vaccinations and what actions you’re going to take.
Marketing will need to be involved here (external comms), as well as HR (internal comms and policy guidance.)
Can I ask questions about vaccination during job interviews?
Be careful about doing this!
We’d recommend avoiding it, as it’s potentially discriminatory to ask and judge a candidate based on their answer (in the same way it would be to ask about political or religious beliefs.) However, that doesn’t mean you can’t raise the subject.
So when is it OK to ask?
Mandatory Categories. Once again, it comes down to Mandatory Categories. If someone’s future role falls into a mandatory vaccination bucket, or where your internal health and safety assessment has judged it a requirement, then it’s something you can ask as it’s vital to their success in the role.
If that’s not the case, you shouldn’t ask.
As an alternative, you can tell candidates your policy.
It may be wise to proactively share your company policy during interviews, i.e. this is how we are dealing with COVID-19, this is our policy on vaccination, this is how we’re handling unvaccinated or unclear colleagues.
In this way you wouldn’t be asking people their status directly, but it gives them the opportunity to have a conversation with you. They may volunteer the information, or ask you questions. Either case can lead to constructive discussion.
Plus, because it’s showing respect for your candidate, you’re likely to have good engagement with them - a bonus in a tough employment market.
Summarising everything we’ve just learned
The do’s
Always go through a proper process. Write thorough documentation, use a consultation process to co-create policies with the relevant people (if not everybody), and follow legal requirements including Employment, Health & Safety and Privacy law. This establishes respect and builds trust, and it de-risks your business.
Write clear policies that affect everyone, so no one feels unfairly treated. Most importantly - follow your own rules!
Use positive encouragement and try to build a culture of vaccination, i.e. “it’s what we do around here.”
Communicate, communicate, communicate.
Always talk about the ‘why.’ Why are you doing what you’re doing? Why is your policy the way it is? Talk about why it matters to the business, to your clients, to the health and safety of your families and community.
Talk about who you are as a team. This is about protecting each other, caring about each other.
Remember that unvaccinated people are still your people. Be careful of splits in your culture caused by differing, often highly polarising, viewpoints.
The don’ts
You can’t ‘require’ people to be vaccinated. Legally, it is not compulsory unless an employee fits the Mandatory Categories mentioned above.
Don’t fire or discipline unvaccinated people - there are plenty of alternatives, like asking them to work from home.
Try not to treat unvaccinated people differently from a company culture perspective. Again, they’re still a part of your team.
Remember that negative comments or behaviour towards anyone who is against the vaccine may be counterproductive and can backfire. People are entitled to their opinions, and legally protected.
Not sure how to navigate these waters alone? We can help
It’s a complicated time to be a business leader, that’s for sure.
If you’re ever uncertain how to navigate these often tricky waters, especially where people’s personal rights and public health and safety clash, then it may pay to get help.
To find out more about what we can do for your unique needs, get in touch with us today.
Or learn more about how Openleaf gets results with our HR services.