Pre-Employment Questions – What can an Employer ask?

A recruitment company’s recent questioning of job applicants to declare any history of family violence has put into the spotlight the legalities around what questions employers can and cannot ask prospective employees.   This is particularly relevant right now in terms of asking prospective employees their Covid-19 vaccination status.

While it is lawful to ask an applicant whether they suffer from health conditions which could impact on their ability to perform the role, questions around family violence posed significant issues from both a privacy law and discrimination perspective.  Similarly, any questions that could result in discrimination on any of the prohibited grounds listed in the Human Rights Act 1993, including: sex, marital status, religious or ethical beliefs, colour, race, ethnicity, age, political opinion, family status, employment status or sexual orientation will also be problematic.  There are of course exceptions that will apply in certain circumstances.  For example, an employer may have a hiring policy that prevents the employment of a de factor partner or spouse for genuine reasons. 

Many employers are currently wanting to know whether they are entitled to require a prospective employee’s Covid-19 vaccination status.  While a person’s vaccination status is their personal information, under the Privacy Act, employers are entitled to request personal information if they have a lawful purpose.  

Employers will need to undertake a risk assessment to determine what roles have a higher risk of exposure to Covid-19 than the general population in order to establish whether collection of prospective employee vaccination information is lawful and necessary. Relevant factors include what level of exposure the employee has to others, how close the contact is, how frequent, how often, and whether the work is performed mainly inside or outside.  It is likely that for employers running hospitality or retail businesses that will be impacted by the new Covid-19 Protection Framework (the “Traffic Light System”), requesting an applicant’s vaccination status would be justified.

In addition to asking a prospective employee for their vaccination status, as part of a new employment agreement an employer may also require vaccination for a role based upon risk assessments they have done.  This must be reasonable for the role and must not amount to unlawful discrimination under the Human Rights Act 1993. For example, there may be religious or medical reasons why someone is unable to receive the vaccine.

It can be difficult at times to navigate the pre-employment process. The specialist Employment Team at DTI Lawyers is always happy to help with both pre-employment and employment related queries.

For any further information on any employment law queries, please contact Jaime Lomas – jaime@dtilawyers.co.nz