Human rights in relation to COVID-19

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Source: Human Rights Commission

Learn about your human rights in relation to COVID-19

Even in times of crisis, people have human rights that safeguard their dignity. Even in times of emergency, human rights place binding obligations upon the Government to abide by the commitments they have made. The Government has obligations to limit the spread of COVID-19, but restrictions must be necessary, proportionate and respectful of human dignity. The Government has Te Tiriti o Waitangi and human rights obligations to protect people’s economic and social rights, as well as their civil and political rights. The following guide provides answers to the frequently asked questions we’ve received in relation to COVID-19 and human rights.

At Alert Level One, everyone can return without restriction to work, school, sports and domestic travel, and can get together with as many people as you want.

Controls at the borders remain for those entering New Zealand, including health screening and testing for all arrivals, and mandatory 14 day managed quarantine or isolation. Please visit New Zealand Immigration’s website for the latest information on the border controls that currently apply.

General human rights

Why must COVID19 decisions be based on human rights?

The New Zealand government must support people who could be worst affected in the crisis. Government and businesses must consider human rights under the Human Rights Act 1993 when making decisions.

In emergencies, governments may be allowed to restrict certain human rights. Any restrictions must be legal and at the lowest level needed.

How much rights and freedoms under the New Zealand Bill of Rights Act (BORA) can be restricted in an emergency is also limited. The World Health Organisation (WHO) says the grounds for restricting human rights in a public health emergency must be legal, necessary, reasonable and based on scientific evidence.

People in detention

Where should I go if I have concerns about my or someone else’s treatment or conditions in detention?

A person is in detention if the Government is holding them in a place such as a prison, police cell, Oranga Tamariki residence, intellectual disability unit, acute mental health unit, aged care facilitie, and temporary places of detention for quarantine purposes, like hotels and campervan. If you are concerned about a person who is detained we encourage you to call us on 0800 496 877 or contact the Independent Police Conduct Authority on 0800 503 728, Children’s Commissioner on 0800 224 453, or the Ombudsman on 0800 326 778.

I’ve recently returned from overseas and have been placed in a hotel and told I can’t leave for the next two weeks, what rights do I still have?

Except for limitations needed to stop the spread of COVID19, people placed in quarantine or managed isolation by the Ministry of Health should have all the same rights as someone who is in self-isolation in their own home. You should still have enough nutritious food, access to hygiene facilities, ability to contact your friends and family, an ability to exercise and a range of purposeful activity. You are also entitled to full information about why you are being detained and how long for. You are still entitled to seek independent legal and medical advice. You are still entitled to be treated with dignity.

On 17 June 2020, the Chief Ombudsman announced he is establishing an inspection programme to monitor and report on COVID-19 isolation and quarantine facilities for people arriving from overseas. If you have any concerns about your treatment, or the treatment of others in a COVID-19 quarantine facility, please contact the Office of the Ombudsman on 0800 326 778.

I live in a disability/aged care residential facility and they’ve told me my family can’t visit me until the lockdown is over. Can they do that?

The Ministry of Health has instructed disability and aged care residential facilities to stop all non-essential services and family visits. This is because older people often have underlying health issues, including respiratory issues that make them more vulnerable to COVID19, and aged care facilities are particularly susceptible to the rapid transmission of viruses. If you are receiving palliative care, your family can continue to visit you, but they will have to take extra precautions. Even though your family can’t visit you in person, you should still be able to contact your friends and family over the phone or through video calls. Unless you have been diagnosed or are suspected to have COVID19, or there are cases in your residential facility, you should still be able to do most of your daily routine. If you do get sick with the virus, staff will isolate you in your room to make sure it doesn’t spread to other people. You should still have enough nutritious food, access to hygiene facilities (and assistance in showering or other activities, if necessary), access to medical treatment, and the ability to call your family while you are in isolation.

Police Authority

What rights do I have when interacting with the Police?

In all interactions with Police, you have the right to be treated with dignity and respect. You have the right:

  • not to be discriminated against for any reason set out under the Human Rights Act 1993 e.g. sex, race, disability
  • to be informed what the Police powers are during the lockdown and to expect they are being applied fairly and consistently.
  • to accessible information about what your legal rights are and to communication support to ensure that these rights have been understood.    

The powers used by Police must be proportionate and only to the extent necessary to prevent the virus spreading.

What powers do the police have in Alert Level 1?

At Alert Level One, everyone can return without restriction to work, school, sports and domestic travel, and can get together with as many people as you want.

Controls at the borders remain for those entering New Zealand, including health screening and testing for all arrivals, and mandatory 14 day managed quarantine or isolation which the Police may enforce.

What additional legal rights do people under the age of 18 have?

Children and young people (under 18 years) have particular rights set out under the Oranga Tamariki Act 1989. Children or young persons are to be informed of their rights before being questioned by enforcement officers, charged with an offence or arrested and explanations must be given in a manner and in language that is appropriate to the age and level of understanding of the child or young person. An enforcement officer should consider a warning as an alternative to prosecution. 

What legal rights do I have if I am detained or arrested by Police?

If you are questioned, detained or arrested by Police, your legal rights are:

  • you can talk to a lawyer privately, without having to wait to see them
  • you can choose not to make a statement
  • you can ask why you are being questioned, detained, or arrested
  • Police have a list of the names and phone numbers of lawyers qualified to give advice and who have agreed to be contacted any time, day or night.

Who should I contact if I have concerns about my treatment by police?

If you have a concern with the way you have been treated by police, you can make a complaint via the following mechanisms:

Employment

Does the Government need to ensure employees have the right to safe working conditions during COVID19?

Employees have the right to work and to the enjoyment of just and favourable working conditions. This includes the ability to make a decent living for themselves and their families and to safe and healthy working conditions. Duties to provide safe and healthy working conditions are primarily set out under New Zealand law in the Health and Safety and Work Act 2015 and the Holidays Act 2003. Guidance for employees, employers and businesses, and financial support is available at the Ministry of Business Innovation and Employment.

Do employers have human rights obligations towards their employees during COVID19?

Employees have the right to be free from discrimination including on the grounds of disability, age, nationality or ethnicity or migration status. The Employment Relations Act 2000 and the Human Rights Act 1993 provide protections from discrimination in employment. If an employee considers their rights have been breached or have been discriminated against, they can take action through a personal grievance claim or a compliant to the Human Rights Commission. The business sector also has a responsibility to protect human rights during this crisis, as set out under the United Nations Guiding Principles of Business and Human Rights and highlighted by UN Experts recently.

Can my employer tell my coworkers about my COVID19 diagnosis even if I don’t give them permission to share it?

Under the Privacy Act there is a general obligation not to use or disclose personal information, unless an exception applies. There are exceptions that permit disclosure, including where you believe the disclosure is necessary to prevent or lessen the risk of a serious threat to someone’s safety, wellbeing or health. Under this exception, when dealing with an employee who may have contracted a highly contagious disease, it may be necessary for an employer to advise other employees so they can monitor themselves for possible symptoms and, if needed, go into self-isolation. You can talk to your employer about what details they will share. For example, your work colleagues might need to know whether you are in hospital or at home, so that they can plan their own work and make sure your job is covered. You can find out more information about your privacy rights from the Office of the Privacy Commissioner.

Family Violence

What should I do if I find myself in an abusive situation during COVID-19 isolation?

COVID-19 has heightened the risks for those most vulnerable to family violence especially women, children, disabled and rainbow people and those from our ethnic-minority communities. Isolation does not mean that you should tolerate violence. Please reach out to Women’s Refuge (for women and children) on 0800 733 843, Shine (for all genders) on 0508-744-633 and dial 111 for Police.

It isn’t safe for me to reach out for help because my abuser lives with me. What can I do?

If your bubble isn’t safe, please seek help immediately. Women’s Refuge offers a discrete shielded support site that can be accessed at the bottom of websites like The Warehouse, Countdown and Trade Me which contains information about how to get help, get out of a situation or make a plan to leave. The website will not appear in your browser history. Look for an icon at the bottom of these websites that looks like this:

What should I do if I feel stressed, anxious and fear that I might lose control and take it out on my family?

Losing a job, a business, hours of work, sleep and connections with friends can greatly heighten stress and anxiety. However they do not justify abusive or violent behavior. If you are feeling stressed out and feel you might lose control and harm someone at home, the best thing you can do is talk to somebody. Don’t hesitate, don’t be whakama. Seek help now by calling the 0800HeyBro helpline on 0800 439 276, Gandhi Nivas on 0800 426 344 or the family violence information line on 0800 456 450 to find out about local services.

What should I do if I think someone is being abused within their homes?

If you are worried about someone in your street, whānau or community who might be vulnerable, please do not ignore what you hear, see and feel. Keep the lines of communication open and encourage them to seek help sooner rather than later. You can also dial 111 for Police.

Are there any other organisations that I could reach out for help? 

  • 211 Helpline (0800 211 211) – for help finding, and direct transfer to, community-based health and social support services in your area.
  • Victim Support – call 0800 842 846. 24-hour service for all victims of serious crime.
  • Victim Information Line/Victim Centre – call 0800 650 654 or email [email protected]
  • Family violence information line – call 0800 456 450 to find out about local services or how to help someone near you.
  • Elder Abuse Helpline – call 0800 32 668 65 (0800 EA NOT OK) – a 24-hour service answered by registered nurses who can connect to local elder abuse specialist providers.
  • Tu Wahine Trust – call 09 838 8700 for kaupapa Māori counselling, therapy and support for survivors of sexual harm (mahi tukino) and violence within whānau.
  • Shakti New Zealand – call 0800 742 584 for culturally competent support services for women, children and families of Asian, African and Middle Eastern origin who have experienced domestic violence.
  • Safe to Talk – sexual harm helpline. Call 0800 044 334, text 4334 or email [email protected]
  • Rape Crisis Centres – call 0800 88 3300 for contact details of your local centre. Provides support for survivors of sexual abuse, their families, friends and whānau.
  • Male Survivors Aotearoa New Zealand – call 0800 044 344. Offers one-to-one, peer and support groups for male survivors of sexual abuse and their significant others.
  • ACC Sensitive Claims Unit – call 0800 735 566 for access to services related to sexual abuse or sexual assault.
  • Hey Bro helpline – call 0800 HeyBro (0800 439 276). 24/7 help for men who feel they’re going to harm a loved one or whānau member.
  • Korowai Tumanoko – text or call 022 474 7044 for a kaupapa Māori service for those with concerning or harmful sexual behaviour.
  • Stop – support for concerning or harmful sexual behaviour. Need to Talk? 1737 – free call or text 1737 any time for support from a trained counsellor.
  • Youthline – call 0800 376 633, free text 234 or email [email protected]
  • Kidsline – call 0800 54 37 54 (0800 kidsline) for young people up to 18 years of age (24-hour service).
  • Skylight– call 0800 299 100 helping children, young people and their families and whānau through tough times of change, loss, trauma and grief.
  • Oranga Tamariki – call 0508 325 459 (0508 FAMILY) or email [email protected] for concerns about children and young people.

Older people

What are my rights to healthcare? I’m worried that I’ll be denied treatment because I’m older and have underlying health conditions.

Everyone has the right to the highest attainable standard of physical and mental health according to international human rights law. The government is obliged to make every possible effort, within available resources, to achieve the right to health for everyone, in a non-discriminatory way.

You have the right not to be discriminated against for any reason set out under the Human Rights Act 1993, including age and disability.

There has been a lot of information in the news about health systems overseas having to use emergency triage because their resources are overloaded. For example, some countries have discussed the lack of ventilators, and whether older patients with less likelihood of recovery should be de-prioritised when allocating emergency resources and medical attention.

The rights of older people to health and life should be protected during this time, especially for vulnerable groups who already suffer poorer health outcomes. The government is confident in the New Zealand health system’s ability to cope with the number of cases and the resources required, so that everyone can receive equal care to recover from COVID-19 or other medical issues. Your doctor, and other healthcare providers, will be able to discuss this more with you if you are worried.

I live in a retirement village. Can my family or friends visit me now that lockdown is over?

In Level 3, you can expand your bubble to reconnect with close family/whānau, bring in caregivers, or support isolated people. This includes if you live in a retirement village. Your bubble should be kept small and exclusive. Remember to take precautions like staying away from people who are unwell.

If you live in a residential aged care facility, non-essential services and family visits are still stopped during Level 3 (except for family visits for end of life/palliative care, on a case by case basis). This is because aged care facilities are particularly susceptible to the rapid transmission of viruses, as we have seen with the COVID-19 outbreak in the Rosewood Rest Home in Christchurch.

My bubble feels unsafe and I think I might be suffering elder abuse. Can I leave?

COVID-19 has heightened the risks for those most vulnerable to violence, including elder abuse. Elder abuse can include psychological abuse like bullying or threats, financial abuse, physical or sexual abuse, and neglect. Isolation is not an excuse for any kind of violence.

If you are not being treated with dignity and respect, you can contact Age Concern for free and confidential support and advice about elder abuse and neglect. Age Concern provides free and confidential Elder Abuse Response Services in most cities and provincial areas throughout New Zealand. These services respond to any situations where an older person / kaumātua’s safety or wellbeing is at risk. You can ring a 24-hour helpline on 0800 326 6865 to be directed to the nearest Elder Abuse Response Service.

If the situation in your bubble is unsafe or life-threatening you can leave your bubble immediately and seek help from a neighbour or friend. Please reach out to Women’s Refuge (for women and children) on 0800 733 843, Shine (for men and women) on 0508-744-633 and dial 111 for Police.

Can my employer tell me not to come to work because I’m over 70?

For people aged 70 and over, and others with existing medical conditions, there are additional risks should you be exposed to COVID-19.

At Alert Level 3, you can choose to return to work if you can’t work from home. If you go to work, you will need to ensure your workplace has arrangements in place to keep you safe.

Options for managing your health and safety might include working at times where there are fewer other workers around, increased physical distancing where possible, additional protective measures or equipment, or undertaking duties with lower levels of customer interaction. If you can’t safely work at your workplace, and can’t work from home, you need to agree with your employer what your leave from work and pay arrangements will be.

While there are some exceptions, under the Human Rights Act 1993 it is unlawful to discriminate against an employee because of their age. If you feel you have been discriminated against you can make a complaint to us.

Disability

Do I hold onto my rights in an emergency?

The government has a responsibility to take all necessary measures to ensure the protection and safety of disabled people.   As a disabled person you have the right to be free from discrimination. This might require government or businesses to make different arrangements to make sure you are not worse off during the response and recovery or face barriers in accessing the right information or support you are entitled to. For example, supermarkets have developed a way for you to indicate you need to be given priority access to online grocery orders and deliveries. You can find other services and support available here at the Ministry of Social Development. You are entitled to ask for reasonable accommodation so that these services are accessible for you. You can find a lot of useful information on the Covid-19 section of the Disabled Persons Assembly website. If you receive disability support, you have the right to feel safe and know what guidance workers are being given about Personal Protective Equipment (PPE). The Ministry of Health has updated its advice on the use of face masks.

What are my rights to healthcare? I’m worried that I’ll be denied treatment because I’m older and have underlying health conditions.

Everyone has the right to the highest attainable standard of physical and mental health according to international human rights law. The government is obliged to make every possible effort, within available resources, to achieve the right to health for everyone, in a non-discriminatory way. You have the right not to be discriminated against for any reason set out under the Human Rights Act 1993, including age and disability. If you feel you have been discriminated against you can complain to the human rights commission. You can call 0800 496 877 or email [email protected] or complete an online form here.

Do I have the right to get information in accessible formats?  (Participation Article 4.3 CRPD)

Yes. Everyone has the right to reliable information about the pandemic, about how to keep safe, and about how to access services and supports that are available to assist people.  You have the right to have information in accessible formats that work for you. Article 9 Convention on the Rights of Persons with Disabilities. The Government has created an accessible information hub. You can find accessible information in various formats here. And you can find some key information in accessible formats here including in Easy Read here. If you cannot find the information you need in an accessible format you can contact [email protected]

Do I still have the right to have a say in decisions that affect me, for example about who can visit me?  

Everyone has a right to be involved in decisions about things that affect them. This is still the case during the COVID-19 recovery. In fact, that is the best way to develop solutions that are culturally appropriate for you and take account of people in many different situations. If you receive a disability support service, you should be involved in the decisions about how you continue to receive support and how that will be done safely. Tāngata Whaikaha (Māori disabled people) have the right to be linked to both Māori and disability response teams.

The Code of Code of Health and Disability Services Consumers’ Rights still applies during an emergency, so you have the right to respect and to information to make an informed choice.

If this is not happening, you can complain to contact the Health and Disability Commission here.

Can I seek reasonable accommodation from my employer, for example, to continue to work from home? 

Disabled employees should enjoy all of the protections provided to any employee Ministry of Business Innovation and Employment. But you also have the right to reasonable accommodation which means that as a disabled employee you can seek changes to work arrangements that would make work safe and accessible for you. For example, if your impairment or other health condition makes it less safe for you to return to work premises when other employees are permitted to do so you could seek an accommodation to continue working from home.

I am a disabled student do I have to return to school if I think it would compromise my health or that of someone in my family?

Disabled people have the right to access education on an equal basis with others. Students have the right to the reasonable supports they need to thrive academically and that includes accessible learning resources including if you believe your health would best be protected by continuing your learning at home when schools reopen. The Ministry of Education has information for students and whānau.

I have an assistance dog, can a business or rental property owner discriminate against me because of my dog?  

You should not be refused entry to service nor should a landlord discriminate against you on the basis of having an assistance dog, as defined by the Dog Control Act.

Face-coverings

What are my human rights when it comes to face-coverings?

Under Alert levels above 1 face coverings are mandatory for most people visiting and working in businesses and services. We have human rights and responsibilities to our whānau, neighbours, workers, and wider communities. Putting on a face-covering is one of these obligations that comes with our human rights responsibilities to each other

However, the Ministry of Health has made it clear they do not need to be worn if a person has a physical or mental health illness or condition, or a disability that makes wearing a face-covering unsuitable. Disabled people have a human right to access supermarkets, healthcare, and other services. For some, they are unable to wear a face-covering. This is not a reason to discriminate against them.

If anyone thinks they have faced unlawful discrimination, they can make a complaint to the Human Rights Commission. The Commission can help with advice and information and, if necessary, mediate complaints. 

If a person cannot wear a face-covering they can get an exemption card to show when needed. They can request a card from the Disabled Persons Assembly NZ by contacting them on 04 801 9100 or at [email protected].

What are the government’s obligations when it comes to face-coverings?

The Government has Te Tiriti o Waitangi and human rights obligations to protect people’s economic and social rights, as well as their civil and political rights. 

The government is obliged to make every possible effort, within available resources, to achieve the right to health for everyone, in a non-discriminatory way, including restricting human rights in a public health emergency.

Mandating the user of face-coverings is justified as long as restrictions are legal, necessary, reasonable and based on scientific evidence. It is not a breach of one’s human right to be required to wear a face-covering.

Anyone without an exemption should ensure they are wearing a face-covering when they leave home or are at work. Face coverings can help reduce the spread of COVID-19.

Vaccines

Is getting a Covid-19 vaccine mandatory?

In February 2021, the rollout of the COVID-19 vaccine started in Aotearoa New Zealand. According to the government, the plan aims to ensure that everyone will get free, fair and equitable access to COVID-19 vaccines. The plan prioritises people most at risk of harm if they get the virus and those who live and work in places where they are most likely to pick up COVID-19.

The Ministry of Health explains that the vaccine works by teaching the body’s immune system to respond quickly to infection without being exposed to that infection itself. It will not give you COVID-19 and it will not affect your DNA or genes. It does not contain any live virus, or dead or deactivated virus. Before vaccines are provided to the community, they must be approved by Medsafe. Medsafe is the New Zealand Medicines and Medical Devices Safety Authority, and is a part of the Ministry of Health.

 

In New Zealand, it is not mandatory to have the vaccine unless you work in managed isolation and quarantine (MIQ) facilities or other government high-risk border settings.

 

The Ministry of Health emphasises that getting vaccinated “is an important step you can take to protect yourself, your kaumātua and whānau from the effects of the virus. It’s one way we can fight the COVID-19 pandemic and protect the welfare and wellbeing of our communities. By having the vaccine you’ll be playing your part to protect Aotearoa. The free COVID-19 vaccine will help protect the team of five million, and safeguard Aotearoa. It will save lives.” 

In New Zealand, it is not mandatory to have the vaccine, unless you work in managed isolation and quarantine (MIQ) facilities or other government high-risk border settings. 

Which human rights are relevant when making decisions about vaccines?

Everyone needs to know what human rights are involved when thinking about vaccines. Human rights law is important in helping make decisions about medical care and treatment, including vaccination.

There are several legally protected rights involved under domestic and international human rights law regarding vaccines that involve a balance between public health and the protection of individual rights. Public health may constitute a legitimate purpose to limit the exercise of some rights. However, any restrictions on rights must be demonstrably justified under section 5 of the BORA. This means that they must be legal, proportionate, necessary.

Some of the relevant rights are found in:

What are the government’s human rights obligations concerning the COVID-19 vaccine?

Right to health (Article 12 International Covenant on Economic, Social and Cultural Rights)

Being vaccinated is a human rights measure in itself. Under the International Covenant on Economic, Social and Cultural Rights (ICESCR) the New Zealand government recognises the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health” (art 12). The government has also committed to taking steps necessary for the “prevention, treatment and control of epidemic, endemic, occupational and other diseases” (art 12(1)(c)) and, in the context of access to medicines the right to “enjoy the benefits of scientific progress and its applications” (art 15(1)(b)).

The United Nations Committee that monitors the implementation of ICESCR has referred to the provision of immunisation against major infectious diseases occurring in the community as a “core obligation” of States and has said that “States must ensure the provision of healthcare, including immunization programmes against major infectious diseases.”

The World Health Organisation (WHO) has also stated that immunisation is a “core health service” that should be prioritised and safeguarded during the Covid-19 pandemic, where feasible.

Right to life (Section 8 BORA; Article 6 International Covenant on Civil and Political Rights).

The right to life imposes a positive obligation on the New Zealand government to take appropriate measures to protect the life and health of New Zealanders. Public officials cannot deliberately take your life and have a duty to take proactive, reasonable steps to protect life.

The right to life is what we call an absolute human right, meaning that the government must protect this right. As an absolute right, the right to life cannot be lawfully restricted.

Rolling out the COVID-19 vaccine can be seen as a reasonable step to protect people from a real and immediate risk of COVID-19. Prioritising the order in which people receive their vaccine dependent on the level of risk that they face from becoming seriously ill from COVID-19 and/or by the likelihood that they will be exposed to the virus is about protecting the right to life.

The World Health Organisation has published a values framework for the allocation and prioritisation of COVID 19 vaccines.

As part of the New Zealand government COVID-19 vaccine programme, people who are not at immediate risk from COVID-19 are being encouraged to receive the vaccine to curb infection rates which will help to protect the lives of others.

Transparency and access to information (Art 19 ICCPR)

Transparency and access to information are essential components of human rights and go hand in hand with accountability.

Article 19 of the International Covenant on Civil and Political Rights notes that the right to freedom of expression includes the freedom to seek, receive and impart information from the State.

People have the right to know what is happening in a public health crisis. Transparency is essential in the vaccination process. The United Nations Office for the High Commissioner for Human Rights has stated that “Information regarding processes of acquisition distribution and application of vaccines in a transparent and responsible manner is required.”

Information about the vaccine should be available in readily understandable formats and languages. Being open and transparent, and involving those affected in decision-making is key to ensuring people participate in measures designed to protect their own health and that of the wider population.

Equal and non-discriminatory access

Vaccination programs should be developed on the human rights principles of equality and non-discrimination, which guarantees access, availability and accessibility of resources without any distinction due to economic situation, ethnicity, gender or any other human or social conditions.

This would mean access to vulnerable communities including stateless people, migrants, refugees without discrimination.

Will everyone have to have the vaccine or can you choose whether to have it?

In New Zealand, having a COVID-19 vaccine is voluntary and vaccines will not be forcibly administered. However, if you work in managed isolation and quarantine (MIQ) facilities or other government high-risk border settings receiving the vaccine is a requirement of the job.

Right to refuse medical treatment (Section 11 BORA)

Section 11 of the BORA provides that “Every person has the right not to be subjected to medical or scientific experimentation without that person’s consent.”

The High Court in New Zealand has described the right to refuse medical treatment as an element of the general right to privacy and the right to bodily integrity, recognised by the common law as a fundamental right.

The Supreme Court of New Zealand has found that, in some instances, the right to refuse medical treatment may be restricted. The Court in the case of New Health v South Taranaki District Council considered fluoridation was “compulsory medical treatment” and in breach of section 11 BORA. However, the Court found that this was a justified limitation under s 5 of the BORA. The Court concurred with the finding of the lower Court that the evidence of the public health benefits justified the limitation on rights.

Can my employer require me to have a vaccine?

New Zealand’s primary workplace health and safety regulator, Worksafe, has produced a guide to assess whether a specific role needs to be performed by a vaccinated worker. The guidance states:

Businesses and services can’t require an individual to be vaccinated. However, you can require a specific role be performed by a vaccinated person – if you have done a health and safety risk assessment to support this.

Worksafe provides general guidance about carrying out health and safety risk assessments, involves consideration of two factors:

  • the likelihood of a worker being exposed to COVID-19 while performing the role, and
  • the potential consequences of that exposure on others (e.g. community spread).

If there’s a high likelihood that the person performing the role may be exposed to COVID-19 and the consequences would be significant for other people, it’s likely the role needs to be performed by a vaccinated person.

If a decision is made that a role needs to be performed by a vaccinated person, the Ministry of Business, Employment and Innovation (MBIE) has provided the following guidance:

  • Employers can make changes to an employee’s duties for health and safety reasons if an employee is not vaccinated. Any such process must be fair and reasonable and carried out in good faith. Employers must avoid the unfair disadvantage. Employers, in consultation with employees, must consider options, such as changing work arrangements, alternative duties or leave. If leave is used, this must be agreed upon, and we encourage this to be paid. Employers and employees may agree to a negotiated end of employment, but individual dismissals are unlikely to be justifiable in almost all cases, based on current circumstances.
  • Employers and employees can negotiate variations to existing conditions of employment to require vaccination. Employers can also require vaccination as a condition for new employees, but this must be reasonable for the role. Employers must follow good faith processes under existing employment agreements (individual or collective) and contracts to make any changes to them.

MBIE also encourages all discussions between employers, workers and unions about Covid-19 vaccination must be done in good faith and employers to offer paid work time for employees to be vaccinated.

MBIE has also published questions and answers for employers on the employment implications of COVID-19 vaccination.

As of 30 April 2021, the COVID-19 Public Health Response (Vaccinations) Order 2021 made it a requirement that all work in MIQ and other government officials at high-risk border settings must be undertaken by people who have received the COVID-19 vaccine. The order made it an offence and a person may be liable to imprisonment for a term not exceeding 6 months or a fine not exceeding $4,000 COVID-19 Public Health Response Act 2020 if they intentionally fail to comply with the Order.

Can the government require me to have a COVID-19 “digital certificate” or “vaccine passport”?

While there have been proposals introduced overseas for COVID-19 “digital certificates” or “vaccine passports” as a way for people to prove their COVID-19 vaccine status to be able to travel or access public spaces, the government has not introduced these measures in New Zealand.

You can find more information on your rights on our website.

MIL OSI

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