Posted by Tony Sung on April 21 2021 in News

From July onwards, as per the Covid rollout plan, two million New Zealanders will be eligible to receive the vaccination, which means, employers will need to have a clear understanding on their rights and responsibilities regarding the Covid vaccination.

If an employer wishes to implement mandatory vaccination for their employees, the first step is creating a workplace policy requiring mandatory vaccination.

Generally, it is not easy for most employers to validate such a policy, as mandatory vaccination may not be reasonably necessary. However, it is more likely for employers in certain industries (such as, quarantine facilities, airports, care homes etc) to justify a mandatory vaccination policy, on the grounds that Covid presents immediate and significant risk to employees in the workplace or their customers and/or clients.

If it is difficult to justify a mandatory vaccination policy for all roles, the employer may wish to implement mandatory vaccination for a specific role.

Even if the employer can justify a mandatory vaccination policy, the employer nevertheless must first consult its staff or unions and seek feedback on the proposed policy. It is a good idea to include an exception to the policy such as refusal based on religious issues or disability. It is also advisable to offer paid work time for employees to be vaccinated.

An interesting issue that may arise is what employers can do in a situation where an employee refuses to get vaccinated. Implementing a mandatory Covid vaccination policy will not entitle the employer to summarily dismiss an employee who refuses to get vaccinated. If an employee fails to abide by the mandatory vaccination policy, the employer will first need to consult the employee to explore what alternatives are available. 

Examples of alternative options are:

  • Changing work arrangements
  • Doing alternative duties with less risk of contracting the virus
  • Undertaking specific COVID-19 protocols such as working from home
  • Moving to a lower-risk role
  • Changing the location of workplace
  • Taking leave

If the employer and the employee cannot reach an agreement despite following a fair and reasonable process carried out in good faith, the employer can unilaterally make changes to the employee’s duties for health and safety reasons.

Kalev Crossland | Partner |

Tony Sung | Associate |

Dew James | Solicitor |

This paper gives a general overview of the topics covered and is not intended to be relied upon as legal advice.