Border worker job losses a reminder most employers cannot legally require staff to be vaccinated

Published May 11, 2021 (last updated January 25, 2022) -

Following reports several Customs workers have lost their job as a result of their decision not to receive the COVID-19 vaccine, Employsure, New Zealand’s leading workplace relations advisor, is reminding SMEs that in most other cases, employers cannot legally require staff to be vaccinated to perform their duties.

New public health regulations which came into effect this month make it mandatory for all workers in managed isolation and quarantine (MIQ) facilities, as well as government agencies at the border, to have at least received their first jab.

When it comes to vaccinations in other industries however, there are currently no legislative grounds, or public health directives, which permit an employer to mandate vaccinations in the workplace. The New Zealand Bill of Rights 1990 provides the right to refuse to undergo any medical treatment, including being vaccinated.

As a result, employers who do still want to have their employees vaccinated need to be aware of their workplace vaccination rights, responsibilities and options.

“If a business owner believes there is a health and safety risk if staff do not get the vaccine, they may need to look at other working measures such as redeployment,” said Employsure Advice Services Team Leader Courtney Woods.

“Because they cannot legally enforce vaccines, employers should consult with employees who refuse a COVID-19 vaccination and discuss alternative measures that can help them do their job safely. Limiting or eliminating face to face interaction, like working from home, is one of the best options employers have when trying to stop the spread of infections.

“What we are seeing with these unvaccinated border workers is most have been redeployed, or are in new working arrangements. These employers appear to be following all the usual protocols, and this should be the case for all businesses.”

While workers do not have to tell their employer if they have been vaccinated, or even give a reason behind it, employers can still ask the question. Employers should assume a worker is unvaccinated if they do not disclose their vaccination status, and should inform that worker of this assumption.

Business owners looking to make their workplace safer should consider introducing a detailed infection control policy which addresses vaccinations, and an immunisation program. It is also a good time to remind staff of existing infection control measures, such as physical distancing, routine environmental cleaning, and the use of hand-sanitiser and personal protective equipment.

In the event a worker falls sick, employers may need to direct them to self-isolate. Employers will need to consider whether workers are entitled to sick leave or able to utilise paid or unpaid leave entitlements. There is also the possibility of employers accessing the Short-Term Absence Payment or the Leave Support Scheme to support paying those impacted.

As the vaccine continues to roll out, employers should monitor who has been vaccinated in their workplace. Employee management software like BrightHR allows employers to tick off those who have received the COVID-19 jab, and keep track of those who have not.

“Employers have an obligation to take reasonably practicable steps to ensure a safe workplace, and vaccinations are a critical component if we are to successfully come out of this pandemic,” continued Ms Woods.

“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.

“It is up to employers to encourage their workers to get vaccinated, provide them with relevant information from the Ministry of Health, and allow workers who want the jab during work hours the right to do so without loss of pay,” she concluded.

Media Enquires:

Matthew Bridges
[email protected]

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