Covid-19: Strong argument for mandatory vaccination for some workers – law expert

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Questions are being asked about whether it should be mandatory for employees, including healthcare workers, to get the Covid-19 vaccine.

A nurse holds a vial of the Pfizer vaccine at the Pablo Arturo Suarez Hospital in Quito on January 21, 2021.

Photo: AFP

Vaccines are already available overseas, with New Zealand slated to start getting next month.

Employment lawyer Barbara Buckett said the law did not allow employers to force staff to get vaccinated, and could not fire them if they did not.

“That’s your Bill of Rights, it’s your right to have medical treatment or to refuse medical treatment.”

Buckett said employers can make providing proof of vaccination a requirement for getting a job – subject to possible exceptions, such as religious or medical grounds.

But she said employers were also required to keep all their staff safe, and could make unvaccinated employees work offsite or even wear a mask.

Buckett said there was a strong argument for mandatory vaccination for those in high-risk employment situations like healthcare workers.

“You’ve … got a situation which is posing risks to [other staff and patients] and to the individual themselves in terms of the health and safety requirements.”

And the issue is almost certain to come up.

A Massey University survey from August found one in four people did not intend to get the Covid vaccine.

While the Director-General of Health Ashley Bloomfield said about 20 percent of people were hesitant about getting the jab, with less than 10 percent likely to refuse outright.

Dr Kate Baddock from the Medical Association said undoubtedly a small number of medical professionals would be among those who declined to get vaccinated.

“There will be individuals right across the spectrum from doctors to nurses to healthcare workers … who, for reasons best known to themselves, choose not to be vaccinated.

“Now, that is their autonomous right.”

But Dr Baddock said all vaccines would have been thoroughly tested and proven safe before they were rolled out in this country.

She said the fact New Zealand was getting them after they had been released offshore meant any potential issues would have been identified and addressed before they got here.

She said New Zealand society as a whole needed to hash out the ethical and legal questions as to whether vaccinations should be mandatory for some workers.

“There needs to be a really good conversation about the value of vaccination in terms of protecting society, versus protecting individual rights not to have to be vaccinated.”

Glenda Alexander from the nurses union the New Zealand Nurses Organisation said she would not support a law change or other legal measures requiring blanket vaccinations for health workers.

“I think it might be a different thing if it [is workers] in the managed isolation facilities and in the border workforces, because that’s a much more precarious situation so I think that needs a lot more thought.

Alexander said the health workforce overwhelmingly supported vaccinations, but any who refused should be able to be redeployed by their employer to duties with less risk of contracting the virus.

The Council of Trade Unions President Richard Wagstaff said the pandemic and the mass vaccination programme was on a scale this country has never seen.

He said the best approach was to work with staff rather than compel those who refuse.

“This stuff is best worked through through discussion and persuasion rather than sort of a hamfisted, awkward compulsory order that’s likely to get people’s backs up.

“If it’s just a … compulsory order, then you’re likely to run into resistance.”

The Aged Care Association chief executive Simon Wallace said there were lots of questions still to work through regarding the rollout of the vaccine.

But he said he has not heard of any staff or residents not wanting to get the shot, and Association members would expect all frontline nurses and care workers to be vaccinated.

RNZ contacted DHBs nationwide.

Hutt Valley DHB and Capital & Coast DHB said in a statement these questions will be addressed in the future as part of the planning for the rollout of the vaccine.

Waitematā DHB said all questions about the Covid vaccines are be directed to the Ministry of Health.

A spokesperson for all DHBs says they are working with unions to keep staff safe and ensure as many people as possible get vaccinated.

The Ministry of Health says the Covid-19 jab will not be mandatory.

The Ministry for Business, Innovation and Employment (MBIE) says it will soon update guidance for employers and workers about the employment law implications for the Covid immunisation programme.

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