These are all real-life examples of questions we have been asked (some details changed to prevent identification). What would you do?
An employer does have the right to decline leave in line with the Holidays Act, however, it doesn’t say you can decline it on the basis of where the employee plans to go on holiday. If you declined the leave on that basis this may be successfully challenged. It could also create the unintended consequence of your employees simply not telling you where they plan to go on their holidays.
Instead, we suggest having a policy on this scenario before the matter comes up. The policy would be focussed on what actions the employer may take if this scenario occurred.
You have a few options, and it could depend on what you decided and communicated before the employee left on holiday. As they are not at work and should be, they are technically on unauthorised leave and not entitled to pay, so you do not have to pay them. If this is the case, make sure you communicate this with them before pay day. Alternatively, if the employee agrees and they have further paid leave available, you could pay them further annual leave. Do not do this unilaterally. The employee must agree first and get this agreement in writing. An email confirmation of their agreement is sufficient. If you have a policy that was brought to their attention before they left, follow the policy.
The work your organisation does requires your employees to go into the homes of your clients. You have a client who cannot be vaccinated (they are pregnant and one of their children is immunocompromised), and they want confirmation from you that your employee has been vaccinated before entering their home. Can you provide the information?
There are lots of hurdles in this one. Firstly, you can ask your employees if they have been vaccinated, however they are not obliged to give you an answer. There are a few exceptions to this where they work in a high risk area such as border workers and front line healthcare workers. While there is no community transmission of COVID-19 in NZ, obliging an employee disclosure of their vaccination status is unlikely to be permitted. When the border opens fully and that changes, there will be considerably more workplaces that will be able to require this on a health and safety basis.
If an employee will not disclose their vaccination status you can work on the basis they have not been vaccinated. You can only share information of who has been vaccinated if the individual employee agrees to this. Get this in writing before disclosing anything.
You will need to complete a health and safety risk assessment on your employees (vaccinated and not vaccinated) going into the homes of your clients and manage that risk. It may be that you determine they can’t go into that home, however you need to also consider other possible measures such as mask wearing and other PPE. As a PCBU you are also responsible for the health and safety of your clients.
Children under the age of 16 and pregnant women.
Everyone else is advised to get the vaccination. People with certain conditions are advised to speak with their vaccinator prior to getting the vaccination. This includes people with underlying health issues such as:
- serious and chronic respiratory conditions, such as chronic obstructive pulmonary disease (COPD)
- chronic kidney/renal disease
- coronary heart conditions
- hypertension (high blood pressure)
- cancer, excluding basal and squamous skin cancers if not invasive
It also includes people trying to get pregnant, breastfeeding mothers, and people on blood thinning medication.
As of April 14, data from the Centres for Disease Control and Prevention (the CDC in the USA), plus studies in the UK and Israel are all pointing to mRNA vaccines (which the Pfizer-BioNTech is) being effective in preventing a vaccinated person passing on the COVID-19 virus to others.