The 90% Project is an NZ Herald initiative that aims to reach all New Zealanders to get the word out about vaccination so we can save lives and restore freedoms. Video / NZ Herald
OPINION:
Delta has forced us to (finally) sharpen our vaccination response.
In workplaces, that's led to questions around health and safety requirements and obligations.
Can my employer make me get vaccinated? What about my anti-vax co-worker - can they make them get vaccinated?
What if I don't have my shots yet?Can I get time off to get them?
In jobs deemed most at-risk of Covid infection and transmission, like MIQ staff and port workers, the Government has already made vaccinations mandatory.
That requirement came at the end of April after an unvaccinated security guard caught the virus in an MIQ facility.
The full details, which break down how roles can be categorised as being performed by an "affected person", are in the public health vaccinations order. Its purpose: "To prevent, and limit the risk of, the outbreak or spread of Covid-19 by requiring certain work to be carried out by affected persons who are vaccinated".
That legislation is important risk-management for the Government. It centres on the fundamentals of vaccination healthcare, which rely on the premise of "the greater good" by minimising risk to individuals. It also acknowledges that under Delta - where information about the virus is limited and constantly evolving - that statement has a lot of layers.
It covers potential harm to individuals, or workers around contracting the virus. That extends to transmission risk and the implications of infected workers spreading the virus outside of workplaces, in the community.
That then means calculating potential impacts for other groups of the population who are most at risk when community outbreak occurs - the elderly, those with significant health issues, Māori, Pasifika, groups with low vaccination rates.
Vaccinations fall under health and safety requirements in some workplaces. Photo / Getty Images
On top of that, there's figuring out just what the health system can cope with, which tends to already be near or at capacity in the absence of a widespread Covid outbreak.
All that has to be weighed against our individual rights. And, as has been highlighted by legal challenges to vaccine requirements, it's the right to refuse to undergo any medical treatment, enshrined in the Bill of Rights, which gets interrogated.
For workplaces - including those covered by the public health vaccination order - that tends to lead to the key question of whether employers can make staff get vaccinated.
To be clear, they can't. Employers don't have any authority to compel staff to get vaccinated.
However, vaccinations can, and do, fall under health and safety requirements in some workplaces, which can mean without them, it can be difficult to stay in the job.
Gordon Anderson, employment law expert and professor at Victoria University of Wellington, says in those situations, it's about managing health risks to staff, and others involved in their work.
"What you would have to show is that to carry out the job safely, you need to be vaccinated and that other reasonable measures [are being] taken to minimise or eliminate the risk," he says.
For example, as an employer, what does it mean if you are knowingly employing someone in a role who isn't vaccinated but is at moderate to serious risk of getting the virus? What else can also be reasonably done to minimise that risk?
What about the people they work with - how does their vaccination status affect those around them? And, if the risk is too great, is there another role they can be deployed to?
If not, and all options have been exhausted – and the individual continues to refuse vaccination without reasonable grounds - then the employer is entitled to initiate a standard redundancy process.
It's an outcome I believe should always be a last resort. And one where the Government's lead, and example, is acutely important - particularly as its own vaccination orders come under scrutiny in the courts. The key question is: how well has it demonstrated and communicated the basis of its own vaccination orders and mandate process? And how does that affect those of us in workplaces that encourage vaccination based on health advice rather than require it?
Kris Gledhill, professor at AUT law school, points to the Government's duty to protect life and harm more generally.
Although that motivates it to behave in certain ways, and may indeed result in limiting individual rights, it is important to show why this leads to the safest and fairest results for the most people. "It's a good idea for governments to be transparent with their evidence up-front, particularly when it relates to decisions about health-related matters because we have a tradition of allowing individuals to make decisions related to their health," Gledhill says.
So, as we navigate Delta, and robust discussions around vaccinations, it's also important our policy makers are clear about the information they're using to push through vaccinations and other health policies.
It'll help in straightening out exactly what's legitimate and isn't – particularly as further changes to how we live are deemed necessary to manage harm.
