As vaccination rates rise in Aotearoa, the conversation begins to focus on how employers will manage their not vaccinated employees.
Regardless of what one may think about the decision not to get vaccinated, it is a person’s right: no one can be forced to take medication against their will.
But what does this mean for employers? Can you fire a worker who refuses to receive the jab? Can you insist that new hires be vaccinated as a condition of employment? What is your recourse if your other workers don’t want to be in the same room as an unimmunized co-worker?
On today’s episode of The Detail, Emile Donovan speaks with Paul Jarvie, health and safety coordinator for the Employers and Manufacturers Association, to discuss the bubbling cauldron of dueling rights and the lack of direction from superiors.
Under the Rights Act, no one in New Zealand can be forced to take medicine against their will, which means that no one can be forced to get vaccinated.
But under health and safety legislation, New Zealand workers have the right to work in the safest environment possible; this could mean an environment where everyone has been vaccinated.
According to the Human Rights Law, you cannot discriminate against people based on their health status, that is, treating people differently because they are not vaccinated is not okay.
And under the Privacy Act, an employer cannot ask people about their vaccination status unless they have a good reason to do so.
All of these competing rights combine to make this a complicated situation, says Paul Jarvie.
“This is all new gray territory, and we’ve been pushing the government a lot for clear guidance in terms of the scope and direction of how far employers can go.”
One thing is for sure: Employers cannot unilaterally insist that their current workers take the hit.
“In the current position, no, they can’t.
“But we see more and more companies that go beyond that limit, saying that we really want, or need, or are asked to vaccinate our staff.
“The downside of all this is that, although it is a pandemic, the labor law and all the other laws that exist are still there. It is not disturbed because there is a pandemic.
“So anything an employer does has to be within the scope of the law.”
Technically, the government could order that all workers in all industries must be vaccinated.
You could do it through a public health order. There are already public health orders that say workers must be vaccinated for a variety of jobs, including MIQ workers, customs workers and defense personnel, some of whom are being challenged in court.
But Jarvie says the government is unlikely to take the step to require this for all jobs, as it could be seen as an overextension of powers.
It says there has been little guidance from the government on the approach employers should take regarding these dueling rights, meaning that many companies have formulated ad hoc plans that, while well intentioned, could be challenged in court. an expensive and time-consuming process. it is in everyone’s interest to avoid it.
Jarvie says the government should issue guidance as soon as possible to avoid this scenario.