Workplace mandated vaccination

HortNZ has looked at all available advice on workplace vaccination.  It has concluded that without a law change, it is risky for employers to mandate vaccination in any workplace.  That is why HortNZ believes the best course of action is for the Government to pass an Act of Parliament to provide employers with definitive direction, irrespective of industry.

Under the existing employment, privacy, human rights and associated laws an employer requiring all workers to be vaccinated is a risk without legislative support.  Sectors – such as border workers and teachers – are covered by an Order issued by the Government, so their situation is different.  Current Government Orders do not cover horticulture.

HortNZ has been advocating along with Business New Zealand for the Government to enact legislation so that employers can mandate where necessary compulsory vaccination in their workplace with legal certainty. 

On Tuesday 26 October, the Government proposed law changes that will provide greater clarity for businesses when making decisions about workplace vaccination mandates.  The proposed plan will require vaccination of all workers at businesses where customers need to show a Covid-19 vaccination certificate. For other businesses, it will introduce a simpler risk assessment process to follow when deciding whether vaccinations should be mandated at their workplace. 

The Government has indicated that it intends to get the proposed law change completed before Christmas. 

Without the law change, HortNZ’s assessment is that it is a risky proposition to mandate vaccination for a workplace.  It can be done, however, by following a process of creating policies and consulting staff on the proposed changes, and then creating the policies and amending employment agreements. 

The first hurdle is to meet the requirements of the Privacy Act, getting permission from staff to consent to them being asked about their vaccination status.  Without this consent, there is a breach of the Privacy Act.  The Bill of Rights, Human Rights Act, employment law and the Health and Safety at Work Act all have application, which creates a real legislative minefield. 

A key question is how to legally manage workers under the Employment Relations Act, who do not agree to the policy change, refuse to provide their vaccination status and refuse to get vaccinated.  Making them redundant is probably not possible as their role still exists.  Redeployment is a possibility, but that would need to be consensual. 

So, the safest course is for the Government to pass an Act of Parliament to cover this.  The frustration is we are going to have to wait for this to happen.