28 Sep 2021

The rules and rights when it comes to vaccinated work places

From The Detail, 5:00 am on 28 September 2021
Vaccination against Covid-19. 
Paris, France (Photo by VOISIN / Phanie / Phanie via AFP)

Photo: VOISIN/PHANIE

As vaccination rates in Aotearoa creep up, conversation is starting to turn to how employers will manage their unvaccinated employees.

Whatever one might think of the decision not to get vaccinated, it is a person’s right: nobody can be compelled to take medication against their will.

But what does this mean for employers? Can you sack a worker who refuses to get the jab? Can you insist on new employees being vaccinated as a condition of employment? What’s your recourse if your other workers don’t want to be in the same room as an un-immunised co-worker? 

On today’s episode of The Detail, Emile Donovan speaks to Paul Jarvie, health and safety co-ordinator for the Employers’ and Manufacturers’ Association, to discuss the bubbling cauldron of duelling rights, and the lack of direction from higher-ups.

Under the Bill of Rights Act, nobody in New Zealand can be compelled to take medication against their will – that means nobody can be forced to take a vaccine.

But under health and safety legislation, workers in New Zealand have the right to work in as safe an environment as practicable – this could mean an environment in which everybody has been vaccinated.

Under the Human Rights Act, you can’t discriminate against people based on their health status – meaning treating people differently because they’re unvaccinated isn’t OK.

And  under the Privacy Act, an employer isn’t allowed to ask people about their vaccination status unless they have a good reason to.

All these competing rights combine to make this a messy situation, Paul Jarvie says. 

“This is all new grey territory, and we’ve been pushing government really hard for some clear guidance in terms of the scope and direction of how far employers can go.”

One thing’s for certain: employers can’t unilaterally insist their existing workers get the jab.

“At the current position, no they can’t. 

“But more and more we’re seeing businesses pushing that envelope, saying we really want, or need, or are being asked to have our staff vaccinated. 

“The undermining thing about all this is that while it’s a pandemic, employment law and all the other law in existence is still there. It isn’t altered because there’s a pandemic.

“So whatever an employer does has to be within the scope of the law.”

Technically, it could be possible for the government to mandate that all workers in all industries must be vaccinated. 

It could do this through a public health order. There are already public health orders in place which say workers must be vaccinated for a variety of jobs, including MIQ workers, customs workers, and defence staff – some of which are being challenged in court. 

But Jarvie says it’s unlikely the government would take the step to mandate this for all jobs, as it could be seen as overextension of powers.

He says there’s been little guidance from government as to what approach employers should take to these duelling rights, meaning many businesses have formulated ad  hoc plans which, though well-intentioned, could potentially be challenged in court – an expensive and time-consuming process which it’s in everyone’s interests to avoid. 

Jarvie says the government needs to issue guidance as soon as possible to avoid this scenario.

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Photo: .