We have been learning daily about the development of successful vaccines to prevent coronavirus.
What are the obligations of employers when the vaccine arrives?
The United States, Australia, as well as about half of European countries have various forms of quasi-mandatory vaccination requirements.
In the US, vaccine mandates are often implemented by requiring proof of vaccination or of an acceptable exemption at school entry.
In Australia, many states have school entry requirements. Sometimes this goes to denying childcare benefits to vaccine refusers who do not have acceptable exemptions. Many families cannot afford to survive without these benefits. Non-medical exemptions have been eliminated in Australia.
With the elimination of diseases such as measles, some people have turned their fear to the vaccines themselves. Despite a really high safety record, vaccines are not perfect and concerns can remain.
A dictatorial approach of forcing vaccinations on people can always backfire.
In the city of Leicester, 150 years ago, 20,000 anti-vaxxers and libertarians protested a smallpox vaccine – a very large number for those days. The United Kingdom ultimately restored a non-medical conscientious objection.
In 2012, the European Court on Human Rights heard a case brought by Ukrainian Sergey Solomakhin.
He opposed his having been vaccinated against diphtheria in November 1998. It was compulsory in the Ukraine at the time due to an epidemic.
The applicant claimed to suffer from a series of health conditions caused by a vaccine which he said he was compelled to take. He said the vaccine was of poor quality. He further alleged it had been improperly stored.
He died in 2010 in his mid-40s.
In 2012, the court released its decision and held that compulsory vaccination was an interference with the applicant’s private life but that it was justifiable in a democratic society for the purpose of protecting public health.
In New Zealand we have had cases dealing with similar issues.
Our Supreme Court issued a decision in 2018 on water fluoridation. That case decided the South Taranaki District Council did have the power to fluoridate water. It looked at a provision in the Bill of Rights Act where one can refuse to undergo any medical treatment.
However, a general provision in the act subjecting rights to reasonable limits prescribed by law was critical to the decision.
justifiable in a free and democratic society. Fluoridation of the water supply was ultimately legal.
Then there was a case involving Rentokil brought by WorkSafe. A restroom cleaner had contracted hepatitis B. The company recognised the role created the risk of contracting diseases such as hepatitis.
The employer breached its health and safety obligations to take all reasonable steps to ensure the safety of employees. The court decided the company should have “offered” a vaccine to the employee.
In a case involving Air New Zealand and its drug-testing policy, the Employment Court accepted that the airline’s health and safety obligations made it reasonable to include drug testing in safety-sensitive areas.
Regardless, employers need to be astute to objections that have a strong foundation. For example, if the objection is based on the provisions in the Human Rights legislation prohibiting discrimination on certain grounds.
Whether a dismissal for refusal to be drug tested in an airline was justified or not would be dependent on all the circumstances and certainly would not automatically be justified, even where all the policy documents were in order.
The justification for a policy that required employees to take a coronavirus vaccine would be weaker than the justification for drug testing in safety-sensitive areas of an airline – for example for pilots.
The Rentokil case provides a better guideline for vaccines. Employers are likely to have discharged their obligations if they recommend to their staff they take the vaccine and they offer to provide it, preferably free of charge.
Employers could make offers of employment conditional on potential employees providing proof of vaccination, subject perhaps to certain reasonable exemptions. This would be a particularly attractive approach in areas such as the healthcare sector.
New Zealand’s political and public health leaders have taken the community with them by accepting quite intrusive restrictions such as the lockdown. The leadership has encouraged us to care for each other with kindness.
There has been legal support for what has been done, but winning people over has been at the heart of our approach.
I cannot see the Government making it mandatory for people to be vaccinated, even if they have the power to do so.
Employers would also be wise to, at the very least, follow that approach by making vaccines available and encouraging their staff to be vaccinated.
New Zealand has been very successful in keeping the virus out of our community. Now that the vaccine is incoming, I am sure we will be equally successful at vaccinating our population and reopening our borders.