An employee’s medical status is generally none of their employer’s business unless it impacts on their ability to do their job. Yet over the past few weeks we have seen employers up and down the motu demanding to know whether their employees are vaccinated or not. This raises a number of sensitive issues and involves a careful balancing of legal rights, which many employers in their unbridled enthusiasm to embrace vaccination appear to have forgotten.
The starting point is that an employee’s vaccination status is their personal information. Under the Privacy Act, employers are only entitled to request personal information if they have a lawful purpose. In the context of the current pandemic employers have asserted that this “lawful purpose” is to ensure that other employees and visitors to the workplace are kept safe and that this is consistent with their health and safety obligations. This may well be a legitimate basis for asking employees about their vaccination status in some cases, but not necessarily all.
To establish whether collection of employee vaccination information is lawful and necessary an employer would need to undertake a risk assessment to determine which roles have a higher risk of exposure to COVID-19 than the general population and can only reasonably be undertaken by a vaccinated employee. The relevant factors in making this assessment include what level of exposure the employee has to others, how close the contact is, how frequent, how often, and is the work performed predominantly inside or outside.
If an employer determines, based on this assessment, that the role can only be done by a vaccinated person, there would clearly be a lawful purpose for asking an employee whether they are vaccinated. In this situation, if an employee refused to provide proof of vaccination, the employer could reasonably assume they were not vaccinated and potentially consider termination of employment in the absence of other alternatives.
It becomes more difficult where the employee’s position does not meet the test for justifying mandatory vaccination, but the employer wants to know anyway. Simply wanting to know about employees’ vaccination status for their own comfort or peace of mind is not likely to be a lawful purpose for seeking this information. There needs to be something more than this, and it needs to be justified based on a proper risk assessment and health and safety management plan.
There have been stories of employers “outing” employees who have chosen not to get vaccinated. This is likely to be a breach of their privacy because even if there is a legitimate reason for collecting vaccination information, an employer then has to store it securely and use it only for the purpose for which it was collected.
Communicating details about the vaccination status of employees within a workplace, without their consent, is likely to breach these principles. It is also quite likely to lead to unfortunate incidents of bullying and intimidation in some instances. Given the sensitivity around this topic it seems inevitable that there will be an escalation in workplace tension over the coming months as some employees start to look at their colleagues with suspicion and/or express personal views and moral judgements.
In their desire to reassure customers that their premises are safe, employers may also be tempted to advertise that their staff are 100% vaccinated. Again, this is disclosing personal information about those staff members and would require their consent.
The drive for vaccination has literally become a national imperative with many New Zealanders considering it to be a moral duty. But we need to remember that not everyone has the same view and “naming and shaming” employees who have make different choices is likely to breach their privacy and also their trust.
It is open to employers to introduce vaccination and testing polices, and to seek information in a reasonable way where there is a lawful purpose. However, this needs to be handled in a sensitive and legally compliant manner. As a first tip to employers, do not ask for a show of hands as to who has been vaccinated in your staff meeting.