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COVID-19 and employment law

As a result of the COVID-19 pandemic, the New Zealand government has made vaccines mandatory for some workers. This means that you could be dismissed from your job if you do not get vaccinated against COVID-19 and you don’t qualify for a vaccine exemption.

When are COVID-19 vaccinations required at work?

Vaccination against COVID-19 is required for jobs or workplaces that are high risk. These are workplaces where there is a higher risk of people getting or infecting others with COVID-19.

Vaccination can be required for two reasons:

  • Your work is covered by a government mandate. This means the government has decided your work is high risk.
  • Your work is covered by an employer mandate. This means the business or organisation you work for has done a risk assessment and decided the work is high risk. See below, “COVID-19 risk assessments” for more information about risk assessments by your employer.

You can view the government mandated jobs if you go to www.covid19.govt.nz and search “vaccinations for workers”.

Can I get a COVID-19 vaccine exemption?

You can apply for an exemption if a medical practitioner says that you cannot physically tolerate a vaccine. There are very few people who are eligible for this. To get a medical exemption your doctor or nurse makes the application for you. The Ministry of Health then decides if you are eligible. You can find out more at www.covid19.govt.nz and search “Mandatory vaccinations exemptions and exceptions”.

I’m not comfortable working alongside people who are unvaccinated.  What can I do?

If you feel uncomfortable or concerned about working beside unvaccinated people, you could:

  • refuse to work because it would be a serious risk to your health. However, this will usually only apply if the workplace is high risk. If a COVID-19 risk assessment has been done, and the workplace is not high risk, you probably cannot refuse to work. See below, “COVID-19 risk assessments” for more information about risk assessments by your employer
  • request a change to your work arrangements. For example, to work at a different location or time to unvaccinated colleagues.

Your employer doesn’t have to accept your request, but they do have to consider it.

Will I get paid while I’m getting vaccinated?

If you are required to be vaccinated for your job, your employer should give you some paid time off to get vaccinated. If you cannot work while you recover, your employer should consider giving you special paid leave.

If you can’t work because you’re still deciding whether to get vaccinated, your employer doesn’t need to pay you. However, they may agree to pay you special leave or annual leave if you ask for it.

COVID-19 vaccines and privacy

Is my vaccination status private information?

Yes. This means the Privacy Act 2020 must be followed when your employer is collecting, storing and sharing this information.

Your employer must not pass on information about your vaccination status to others unless you agree to this or for the reasons allowed by the Privacy Act. For more information on privacy laws, see the chapter “Privacy and information”

Can my boss ask me if I’m vaccinated?

Employers can ask you what your vaccination status is if they need the information for a lawful purpose.  A lawful purpose would be:

  • to make sure only vaccinated staff are doing work that the government has said only vaccinated people must do (for example, border workers)
  • to make sure all staff are vaccinated if the business has chosen to be part of the traffic light system which uses vaccine passports (for example, some cafés or hairdressers)
  • as part of a COVID-19 risk assessment
  • after a risk assessment is completed and the assessment shows that people doing the job must be vaccinated (for example, a social worker who works with vulnerable people).
COVID-19 risk assessments

When is a risk assessment necessary?

If a business or organisation does not come under a government mandate but wants its employees to be vaccinated, they need to do a risk assessment. A risk assessment helps the business or organisation decide whether its workplace or the jobs people do create:

  • a high risk of a people getting COVID-19; or
  • a high risk of infecting others with COVID-19.

The risk assessment may show that vaccination of workers is a reasonable and necessary step to prevent the risk of catching or spreading COVID-19. This may relate to some or all workers.

The risk assessment may also show that customers, contractors, and suppliers are at high risk from visiting the workplace. The government has created a risk assessment tool that can be found at www.business.govt.nz/covid-19/vaccination-assessment-tool

How does a business or organisation do a risk assessment?

A business or organisation can choose to do a risk assessment to see if they need work to be carried out by vaccinated workers, on health and safety grounds. To do this, the business can either:

  • do a health and safety risk assessment using a method they consider fit-for-purpose for their business (including following existing industry guidance), or
  • use the vaccination assessment tool found on business.govt.nz

If you had already done a health and safety risk assessment before the vaccination assessment tool was introduced, you don’t need to do a new assessment.

Does a businesses or organisation have to talk with their employees before carrying out a risk assessment?

Yes, they must talk with employees before and during the assessment. If your workplace is part of a union, your employer must talk with them too. If you are a union member then your union representative can also be involved in the discussion.

Can a business or organisation require vaccinations before it does a risk assessment?

A business or organisation under a government mandate does not need to do a risk assessment to require vaccinations.

On the other hand, a business or organisation that is considering an employer mandate must do a risk assessment before requiring employees to get vaccinated. Sometimes they will need to know your vaccine status in order to complete a risk assessment.

Being fired from your job if you’re an unvaccinated worker

Can I lose my job if I’m not vaccinated against COVID-19?

People can lose their jobs if they do not get vaccinated. If it’s legally required that your job is done by someone who is vaccinated, and you do not get vaccinated, you might lose your job. It will be legally required if your job is under a government mandate or an employer mandate. See above, “When are COVID-19 vaccinations required at work?”

Before you lose your job, your employer must talk to you about your options. You could talk to your boss to see if it’s possible to change your work arrangements on a temporary or permanent basis. For example, so that you only work from home, move to job in the business where you don’t need to be vaccinated, or take some form of leave.

If you and your employer agree to change any of your work arrangements, you might need an updated employment agreement.

If you are a union member then your union representative could also be involved in the discussion.

Will I be fired if I don’t get vaccinated?

Even if it’s a legal requirement that you are vaccinated due to your job, being fired is the last resort. Your employer should consider changing your work arrangements first. If that’s not possible, your employer could legally fire you.

If your boss fires you they must follow a fair process which would include:

  • providing you with the correct amount of notice (4 weeks or more paid notice), and
  • paying you the right amount in your final pay.

My employer has fired me for being unvaccinated, is there anything I can do about it?

Yes. Even if your role must be performed by a vaccinated worker (i.e. is covered by a government or employer mandate), you could still raise a personal grievance. See the chapter “Employment: Resolving problems” for more information on personal grievance process

A personal grievance could be raised if the firing was unjustified. It will be unjustified if alternatives were available.  For example, if your employer could move you to a safe location or change your role so that it’s not high risk.

If you don’t think your employer followed a fair process, you might be able to challenge it based on procedural unfairness.  Unfair processes usually happens when an employer does not give you enough time and information to participate in the decision making process.

What if I don’t agree that I need to be vaccinated to do my job?

If you think your role is not high risk and shouldn’t require a vaccination then you could use the free Early Resolution Service to try resolve the issue. Visit www.employment.govt.nz and search “Early resolution service”.

If that doesn’t work and you think your employer didn’t followed a fair process, you could raise a personal grievance. See the chapter “Employment: Resolving problems” for more information on personal grievance process

Where can I go for more support?

If you need legal support or clarity on what you’ve read here, please contact a Community Law Centre or other legal advice service.

For up-to-date information about traffic light settings and boundaries, please go to www.covid19.govt.nz

 

 

 

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Employment: Conditions & protections

Where to go for more support

Community Law

www.communitylaw.org.nz

Your local Community Law Centre can provide free initial legal advice and, depending on your situation, may also be able to provide ongoing support.

“Pregnancy Rights: Your legal options during and after pregnancy” (booklet)

This booklet contains practical answers to questions about pregnancy and the law, and includes information on sexual health and consent, options after a positive pregnancy test, healthcare, education, housing and more.

Order hard copies from:

Community Law Wellington and Hutt Valley

Phone (04) 499 2928

Email: publications@wclc.org.nz or visit www.communitylaw.org.nz to buy a copy or access free online

Ministry of Business, Innovation & Employment

www.employment.govt.nz

Free phone 0800 20 90 20, for general enquiries about employment relations, pay and holidays.

The Employment website of the Ministry of Business, Innovation & Employment publishes a range of publications on employment relations and minimum rights at work.

Labour inspectors

Labour inspectors monitor and enforce minimum employment conditions. To refer a problem to a labour inspector, you contact the Ministry of Business, Innovation & Employment on:

Free phone 0800 20 90 20

Worksafe New Zealand, Mahi Haumaru Aotearoa

www.worksafe.govt.nz

Free phone: 0800 030 040

Worksafe New Zealand’s website has a range of information and publications on workplace health and safety issues.

Parental leave payments

www.ird.govt.nz/topics/paid-parental-leave

The Inland Revenue website has information on parental leave payments.

Whistle-blowing (“Protected disclosures” by employees)

www.ombudsman.govt.nz

Free phone: 0800 802 602
Email: info@ombudsman.parliament.nz

The Office of the Ombudsman provides information and guidance to employees about making a protected disclosure.

New Zealand Council of Trade Unions, Te Kauae Kaimahi

www.union.org.nz

Phone: (04) 385 1334
Email: info@nzctu.org.nz

The NZCTU is the umbrella body for affiliated unions covering every job and industry in New Zealand. It can provide information about which union may cover the type of work you do.

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