Employing humans isn’t easy in the best of times, let alone during a pandemic. Let’s face it, though, we actually love being employers. Robots would be boring to manage, and we love a challenge.
Setting aside the considerable effects of lockdowns and levels for a moment, we would like to chat about a touchy topic, The Anti-Vaxxer; but we would like to do it in a light-hearted way. Because when you smile it all just feels a little less shit.
Here’s some ‘need-to-knows’ on what you as an employer can and can’t do when it comes to vaccines in the workplace; assuming that you are in the majority, and you see vaccines as a good thing (if not… well go read your Facebook feed).
Can I require my employees to show me proof of vaccination?
Sort of. Depends on what industry you’re in and what sort of boss you are. If you have a strong explanation as to why you need the information to safely manage the workplace environment and you have not had a habit of prying into things that are none of your business, ask away. Asking for medical records is seeking personal data. The data, the request for it and the disclosure of it is protected by law. Plus, you have the Human Rights Act to worry about. There are many reasons for not getting a vaccine, including disability, medical or religious reasons. Your job is to assume one of these reasons exist and proceed with caution.
So how do I know if my staff are vaccinated?
Write a letter or email to everyone asking politely if they would mind giving you a nod if they are vaccinated and let the team know that if they don’t do so, you will assume that they are unvaccinated. You will find that everyone that you think is unvaccinated probably doesn’t reply. While you’re at it, you may also implement a policy that requires them to tell you if they have been at locations of interest or are a close contact for health and safety reasons. However, you will have to have a clear reason as to why this is necessary because of your industry. Gathering this info is, more than likely, a responsibility as a PCBU (person conducting a business or undertaking). Oh, and you can require proof of a negative COVID test before allowing an employee to come back to work if they have been identified as a contact of a positive case. That’s only fair and reasonable.
Can I force the point?
Maybe, but proceed with caution with existing staff; newbies might be a little simpler if you update your policy and employment agreements prior to employing them. There is currently scope to introduce a mandatory vaccine policy in certain circumstances following a comprehensive health and safety risk assessment, but employers will have to be extremely careful going down this road. We suggest you come and talk to us about how to do this and consider including vaccination requirements in future employment contracts (but beware of discrimination – that is bad).
Why can’t I just write up a vaccine policy and implement it?
Cos’ it’s illegal.
To expand on our earlier point, for workplaces that fall outside of the new COVID-19 Public Health Response (Vaccinations) Amendment Order 2021, enforcing an in-workplace vaccine policy without careful consideration and collaboration can infringe on an employee’s rights under the Bill of Rights Act and other rights in the Health and Safety at Work Act and the Employment Relations Act. You gotta put in the mahi and follow a fair process.
Could a government-mandated wider workforce vaccine policy happen in future?
Probably, but you’d better ask the PM. With the Government recently enforcing the vaccination of border workers as well as the newly introduced health and education staff vaccine mandate, we can’t entirely rule out the possibility of this happening in other industries. However, the current laws are enough of a safeguard to protect employees who do not work in these already-mandated industries, as Government officials have stated that decisions to enforce vaccination were decided under extreme circumstances which would otherwise not be allowed by employment law.
I want my staff to get the jab and they’re refusing. What should I do?
If you have an employee in a sensitive role who refuses vaccination (and you’ve followed advice and not been a d!#k), you must consider that employee’s contractual rights before going any further.
We’ve summarised some tips on how to approach this below:
Discuss with the employee to see why they won’t be vaccinated and consider their rights under the Human Rights Act to ensure there is no discrimination.
Consider whether health and safety measures can be achieved through the use of PPE gear and social distancing.
If there are no other options available to you, then you can consider redeployment.
You should consider terminating the employment agreement only if redeployment is not a viable option and after taking advice from iCLAW. It’s a sticky wicket people.
Ok, but what about the guys who now don’t want to work with Veronica the Anti-Vaxer?
If the Government has mandated, through the current Alert Level strategy, that the level of interaction in the workplace is appropriate and safe, then a refusal to return to work is a refusal to work, and the normal employment laws apply. So unfortunately for everyone, Veronica’s rights are more righty than the rest and, important to note, if Veronica can’t get vaccinated for health reasons (cancer for instance) then you all might give her a break. You could, if practicable, also separate Veronica away from other staff and customers (taking into account the same sorts of considerations noted above).
If you need some help navigating the very pointy topic of vaccinations (see what we did there) in the workplace, get in touch. Our expert team, all of whom have received their jabs, are available to meet regardless of your vaccination status, but subject to the fine print (i.e. alert levels permitting).
Photo Credit: Daniel Schludi