Can your employer ask if you have been vaccinated?

As New Zealand continues to contain the threat of COVID-19, attention has turned to vaccinations. Widespread take-up of the COVID-19 vaccine has been touted as the key to freedom around the globe, but as Australia has found out the hard way, a successful rollout is key.

Employers are now beginning to consider the legal implications of vaccinations and how their workforce will be affected. Incentives like vaccine leave and in some extreme cases, compulsory jabs, have been top of mind for HR leaders across the country.

Here, HRD explores the legal situation facing employers and their workers around vaccinations and privacy.

Can an employer ask if employees have been vaccinated?

Yes, but the answer isn’t that simple. Employers can ask about an employee’s vaccination status 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 to ask the question.

For example, workers involved in MIQ facilities or flight crew who may come in contact with infected passengers may reasonably be asked to provide information on their vaccine status. With no community transmission in New Zealand, the risk is far lower for all other industries and therefore employers may struggle to argue they have a valid need to know. Asking for vaccine information simply to have ‘just in case’ it is unlikely to be an acceptable justification.

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Does an employee have to answer?

No, employees do not have to answer or prove their vaccination status. However, if the role is required to be performed by a vaccinated employee, employers can assume a worker has not had the vaccine if they refuse to disclose.

In that case, an employer must inform the worker of that assumption and the possible consequences of not disclosing or being vaccinated. Under a government health order made earlier this year, it’s compulsory for border and MIQ workers to be vaccinated against COVID-19. That includes private and public sector workers involved in MIQ, port workers, those handling items from ships and aircrafts, as well as anyone who has contact with the workers covered by the order, such as their household contacts.

The deadline for MIQ workers has already passed. For wider border workers, all government employees must have had their first dose by 26 August 2021, while privately employed border workers must have had their first dose by 30 September 2021. After this time, employees will not be allowed to continue working in border roles.

Under the order, employees must provide their vaccination status to their employers to enable the business to comply with its legal requirements.

Can employers require workers to be vaccinated?

Businesses will be unable to legally enforce compulsory vaccinations. However, if there is a valid health and safety risk, or the work falls under the government’s public health order, an employer can require work is done by only vaccinated workers.

If an employee chooses not to be vaccinated or cannot be for health reasons, businesses must consider the health and safety risk through a comprehensive risk assessment of that role, and consider other options like redeployment, changing work duties or using other measures like the use of PPE. Even in the situation where an unvaccinated worker can no longer carry out their role, employment law still applies. That means employers must carry out their due diligence in good faith to consider other options, making sure termination is a last option.

Businesses should also play a role in minimising any barriers to getting vaccinated, like allowing time off without impacting an employee’s annual leave or pay.

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How to protect workers private information

Information about an employee’s vaccination status is considered personal information, and so the collecting, storing and sharing of that data must be done in accordance with the Privacy Act 2020.

It’s vital that employers are safely storing private data to avoid it being lost or unlawfully shared. Employers cannot share the information, including with other colleagues, unless the employee gives permission or the disclosure is tied to the purpose of collecting the information.

For example, if an employer has asked for employees’ vaccinations status in order to disclose it with the government and comply with a public health order. As a rule, employers should be transparent with employees over why they are collecting that data, how it will be stored, and if it has been collected to be shared with a third party.

Most importantly, the collection of the information must be tied to the organisation’s purpose or function. If it’s not necessary, an employer should not be asking for it.