14 Sep 2021

Covid19, the Vaccination and the Privacy Act

As New Zealand begins to ponder the medium-term implications of Covid19, many employers have begun to consider what they need to do to manage their business in a sustainable and safe manner, mindful that employees also have a right to privacy.

The basis for understanding what an employer can or cannot ask an employee has to follow an assessment of the risk facing the employer’s business. Employers should first conduct a health and safety risk assessment to understand which jobs in the organisation may be at greater risk of contracting the virus, an example of employees in this category are those often termed ‘front-line’ workers.


Bearing in mind that both employees and employers have an obligation to be open, constructive and communicative in their employment relationship, it is important that parties work together to ensure the safety of both.


If the employer has identified a high risk of an employee contracting Covid19, then they can ask the employee if they have been vaccinated. If the employee chooses to share this information with the employer, and the employees does not have to, then the employer must follow the usual protocol for maintaining privacy and storing the information. The employer cannot share the fact that the employee is vaccinated, unless there are specific circumstances, such as a serious threat to public safety or if they have the employee’s consent. Similarly, an employee does not have to indicate whether they choose to be vaccinated.


Similarly, if the employer assesses that a serious health risk exists and the work needs to be performed by a vaccinated employee, such as in a retirement village, then that employer can ask candidates applying for a job opportunity whether they have been vaccinated. If the candidate is not vaccinated, then it may not necessarily preclude the employee for all employment opportunities at the retirement village.


If an employee arrives at work and appears to display covid19 symptoms, then find a physically distanced safe way to ask them about their symptoms and encourage them to get tested and isolate. Under these circumstances, the employer also has an obligation to manage any risk of infection to close contacts in the workplace and should talk to the other employees about their potential exposure to the virus. The employer needs to be careful not to identify the employee who may have the virus, especially if the employee has not been tested.


While being kind and being safe sounds easy, it seems doing the right thing at times can be quite challenging.


Greg Cateley

People & Culture Specialist

Mobile: 07 266 9077