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Can Employers Mandate Vaccinations in the Workplace?

Published August 25, 2021 Author: Employsure
employer who understands how to mandate vaccines in her workplace

As an increasing number of New Zealanders roll up their sleeve to get their COVID-19 vaccination, it has caused confusion among small business owners as to what their workplace vaccination rights, responsibilities and options are. There are many aspects employers need to be aware of when tackling the issue of vaccination with their employees.

Can The Vaccine Be Made Mandatory?

We’ve seen many companies take different approaches throughout the year to promote the jab. In some cases, companies have mandated the COVID-19 vaccine for their employees.

At this time, vaccinations are only mandatory for certain work carried out at the border, under a Government public health order. As such, while employers may seek to mandate vaccinations for the health of their staff, there is currently no explicit law in legislation for employers to direct their employees to comply with outside of specific industries and occupations.

Those who want their staff vaccinated may see themselves hit with an unjustified dismissal claim, if an employee were sacked as a result of refusing the jab, due to the direction not being reasonable.

There are many factors at play when determining if the direction is ‘reasonable’, such as   whether the direction is consistent or in conflict with public health requirements (if any), vaccine availability, the prevalence of community transmission of COVID-19, employees’ individual circumstances, the risk of infection in the workplace or the environment the employee performs their duties in, whether other measures can successfully mitigate the risk of infection, as well as what is set out in the relevant employment agreement and any relevant policies.

Generally, it is unlikely that a direction to be vaccinated would be reasonable if an employee worked 100% remotely. A general guideline is if the employer is unsure, they should seek legal advice.

If You Cannot Mandate, You Can Still Encourage

Employers do have a duty of care to their staff and must do everything reasonably practicable to reduce the risk to health and safety in the workplace.

Vaccination can be considered as one way to achieve this but all reasonable measures to control the risk of transmission and infection should be considered. Employers must consult with workers regarding risk management strategies, which may be an excellent opportunity to discuss a vaccination program and discuss any concerns.

If employers are unable to mandate that employees receive a COVID-19 vaccine, they can encourage their employees to receive one. Employers can suggest staff get the vaccine and provide them with relevant government health advice.

Unless it is lawful and reasonable in the circumstances for employers to require employees to disclose their vaccination status or provide a reason for their refusal to be vaccinated as part of a mandatory vaccination policy, workers do not have to tell their employer if they have been vaccinated, or even give a reason behind it.

To keep on the safe side, employers should discuss with a worker their concerns about disclosing their vaccination status or reason for refusal. If the worker was still not forthcoming, employers may need to assume the worker is unvaccinated, inform the worker of that assumption, and arrange suitable duties for the worker to accommodate the health and safety requirements of the business.

In circumstances where employers cannot reasonably direct their employees to receive the COVID-19 vaccine, employers should consult with employees who are unable, or don’t want to have the COVID-19 vaccine, and discuss alternative measures that can help them do their job safely. The employer should explore all reasonable alternatives, such as working from home or another location, alternative duties, additional PPE or enhanced safety practices.

Have An Effective Infection Control Policy

Employers have an obligation to take reasonably practicable steps to ensure a safe workplace, and public health advice indicates vaccinations are a critical component if we are to successfully come out of this pandemic. While vaccinations form part of a business’ methods of controlling the risk of infection, a business must therefore have other plans in place if they have workers who refuse to be vaccinated.

The most important thing an employer can do is incorporate an effective infection control policy based on government health advice which addresses vaccinations and subsequent immunisation programs. Staff should be reminded of existing infection control measures already in place, such as physical distancing, routine environmental cleaning, and the use of hand-sanitiser and personal protective equipment.

Handling Vaccine Misinformation In The Workplace

If an employer becomes aware of vaccine misinformation in the workplace, or if the topic of vaccinations is seen to be causing conflict, it is recommended for the employer to hold a meeting with relevant employees. This gives the employer the opportunity to investigate the concerns and opinions of employees, and then base any further action off the back of that meeting.

The action that should be taken regarding misinformation is dependent on what has been said in the workplace and the subsequent meeting, the severity of what has been said, and the potential impact it could have on other employees.

If an employee is found to have purposely spread misinformation through the workplace despite a policy or direction not to do so, the business may consider disciplinary action for failure to comply with a reasonable management direction.

Be Prepared For What Lies Ahead

While vaccinations form part of a business’ methods of controlling the risk of infection, employers must therefore have other plans in place if workers refuse.

For employers who make vaccines mandatory to continue on-site work, by doing so it could lead to legal challenges in the future. Employers must be prepared for that and weigh up alternatives to mandatory vaccinations if it comes to it.

Want More Information?

If you’d like more information about how you can do everything reasonably practicable, our COVID-19 Vaccinations Kit can help you.

COVID-19 Vaccinations Kit for Employers

Included in this kit:  

  • Comprehensive guide to vaccinations in the workplace 
  • Fact Sheet 
  • Template Immunisation and Infection Control Policy 
  • Template Vaccine Register 
  • Template memo to staff 

Need Workplace Advice?

Call our team to receive free initial advice on any workplace relations topic.

About Employsure

Employsure is one of New Zealand’s largest workplace relations advisers to small- and medium-businesses, with over 30,000 clients in ANZ. We take the complexity out of workplace legislation to help small business employers protect their business and their people.

This article has been drafted with the help of Larry Drewsen, Employsure Health and Safety Manager

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