COVID-19 vaccine policies for New Zealand employers

Employment advisors across New Zealand are being inundated with questions from both employers and employees about the COVID-19 vaccination and the impact it has (or may have) on New Zealand workplaces. “Can I mandate vaccines in my workplace?” “What do I do if a vaccinated employee refuses to work with an unvaccinated employee?” “Can I incentivise my employees to get vaccines?” “Can I ask an employee about their vaccination status?” Most of the answers are very client or industry-specific and there is no one-size-fits-all answer. 

However, with so many questions being asked, we are recommending that employers across New Zealand turn their minds to developing a COVID-19 Vaccine Policy to provide them with the greatest level of flexibility and protection both now, and in anticipation of future developments.

The Policy

A Vaccine Policy will look slightly different for every organisation, but there are a few key points that each should cover:

Purpose: The policy should set out a clear purpose or intent behind it. Broadly, this is likely to be a commitment to keeping employees healthy and safe at work, and could potentially tie in to company values and/or the wider community. 

Company position: The policy should make clear the organisation’s position (e.g. that it encourages vaccination and supports the official advice given by health experts) and set out whether vaccines will be mandated or encouraged. If there are certain roles that will meet the threshold required for mandatory vaccination, these should be set out in the policy. The reason for a role requiring vaccination will be either due to a government health order, or based on a health and safety risk assessment conducted by the employer. (See Worksafe's guidance on what work requires a vaccinated employee for the core criteria for a health and safety risk assessment)

Exemptions: How the Company might manage exemptions (including on genuine medical grounds) if they are going to require vaccination and the process for submitting these.

Other control measures: The Company’s position on other measures to ensure a safe and healthy workplace, including physical distancing, hygiene and mask wearing etc.

Incentives and expenses: Will the Company assist the employee in getting vaccinated, such as providing a half day of “vaccination leave” or provide free taxis/Ubers to the appointment. Some are going so far as to provide unrelated incentives such as $100 vouchers or payments to encourage hesitant employees to get the vaccine. 

Consequences: Outline the impacts and outcomes of people not complying with the Policy. If you are going to require vaccination in particular roles, this may be redeployment to a suitable alternative role (if available) or dismissal where an employee refuses to get vaccinated. We recommend engaging your legal counsel to ensure that this approach is workable for your business, as many New Zealand employers will find it difficult to dismiss for not being vaccinated where the work does not carry a significant risk of exposure.

Information: Refer employees to official sources for further information on COVID-19, such as the Ministry of Health COVID-19 website. 

Mental health:  Recognise that the pandemic and associated impacts can affect employees’ wellbeing and mental health, and details for where support can be sought (such as EAP) should be provided.

Misinformation: An employer may want to consider how it will approach and deal with employees who share COVID-19 misinformation in the workplace. Channels such as Yammer or Teams can be helpful for building workplace relations, but if not carefully monitored can also become forums for sharing inaccurate information. As an employer you have a duty to take all reasonably practicable steps to ensure the health and safety of employees. Arguably, this extends to monitoring work-related platforms to prevent misinformation from spreading, where this may impact the mental or physical health of your people. 

Third-party requirements: Consider whether third parties such as clients or suppliers will require your workers to be vaccinated or provide proof of vaccination to enter certain areas or engage with their workers. It may be helpful to touch base with key clients or suppliers to get more information on their intended approach and consider how this may impact your business’ position on vaccination.

Education and dealing with the vaccine-hesitant

Most organisations will have already turned their mind to internal communications around vaccination and its benefits. Communication should be appropriately levelled for the workforce, and promote official advice. It may in some workplaces be complemented with more interactive education such as staff sessions with medical experts or a question/answer forum. Consider whether the platform and communications are accessible and easily digestible across the workforce.

An organisation should also develop an approach to dealing with the vaccine-hesitant and/or anti-vaccine workers.  This will often have to be a tailored conversation as there can be a range of reasons behind the position, but a high level guide on how to approach the situation will be helpful for managers who need to have those sometimes difficult conversations.  This approach will vary depending on whether the organisation is mandating or just encouraging vaccination. 

Privacy issues

Organisations need to consider the data privacy implications of collecting vaccine information from employees, particularly if that information may be transferred to another party or, in a global organisation, offshore. A person’s vaccination status is personal information and so falls under the protections of the Privacy Act 2020 (PA).  There are limited situations where an employer can ask for the vaccination status of an employee and an employer must have a legitimate need to know. Justifiable reasons to ask for this can include a legitimate health and safety concern, or where certain roles must be performed by a vaccinated worker.  An individual’s vaccination status should not be shared, including with other employees, unless it is necessary in the circumstances. An employer must not collect vaccination status information in a way which is unreasonably intrusive in the circumstances (such as publicly or in front of other employees).

Introducing the policy

Much like with any policy being introduced, an organisation should look at consultation as part of the process. This may involve consulting all employees, or a Health and Safety Committee representative, as well as unions where relevant. An employer does not need 100% buy-in across the workforce to introduce a policy, but it is a sign of good faith to consult and gather feedback before implementing a new policy. 

We recommend consulting your legal advisor when drafting the policy. 

Ongoing flexibility required – new variants 

The nature of the pandemic is changing constantly- in recent months a ‘Mu’ variant has been identified in South America. We’re hopeful that the Government will soon release clearer guidance for employers who are balancing a number of interests and obligations in managing their workplace under COVID-19. Until then, the policy should be sufficiently flexible and reviewed regularly to deal with potential changes. Communication with employees will be key, and we expect most businesses have established effective systems for keeping their people informed.