Can Employers Or Government Force Employee’s To Get Vaccinated?
The Covid-19 vaccination programme is being rolled out in New Zealand has led to this question being asked.
Can employers or the government make employee’s get vaccinated?
The answer is NO……..but…
Competing Rights and Duties
There are competing rights, duties and obligations of employees, employers and the government.
1. The Employee has personal rights.
2. The Employer has an obligation to keep their employees and clients safe
3. The Government has an obligation to keep their citizens healthy.
So, whose rights trump?
Employee’s Personal Rights
Personal Rights include;
1. The employee’s right to Personal Autonomy about what can and can’t be done to their body.
2. Their right to safeguard their human rights to Privacy
3. Their right to freedom from Discrimination if the worker refuses because of their beliefs
4. Their right to protection from Constructive Dismissal (forced resignation).
Personal Autonomy
Forcing an Employee to be vaccinated against their will is a violation of their fundamental right to their personal autonomy, specifically the right to bodily integrity.
Bodily integrity allows every person to make decisions for themselves about what can and can’t be done to their bodies. Making an unconsented physical intrusion into a person’s body like a vaccine would be a violation of every person’s human rights.
What type of Privacy needs Protection?
An Employee has personal rights under the Privacy Act 2020. Asking if you have been vaccinated is sensitive health-related information and would be protected under privacy law.
What type of Discrimination
There may be religious reasons for employee’s not being vaccinated like health issues, pregnancy, or religious beliefs. Any breach of our discrimination laws under the Human Rights Act can be defended.
What is Constructive (Forced) Dismissal?
If an Employer demanded their Employees would be dismissed if they did not have the Covid-19 vaccination, and the Employee refused, it is likely the Employees would raise personal grievances for constructive dismissal, which is forced dismissal and is unlawful.
An employee could also argue a breach of their Human Rights around a breach of personal autonomy.
EMPLOYERS HAVE HEALTH & SAFETY OBLIGATIONS
Employers have obligations to provide a safe workplace for their employees. So, if half the employees are vaccinated and half are not, what can an Employer do to keep their unvaccinated employees safe? What about the safety of their clients that come into their business premises? Can they demand that only those clients who can prove they have been vaccinated have a right to shop there?
Qantas boss, Alan Joyce said in November 2020 that all of their International air travellers will in the future need to prove they have been vaccinated against Covid-19 in order to board Qantas flights. That must surely include their staff?
EVERY GOVERNMENT HAS A DUTY TO PROTECT THEIR PEOPLE
Can our Government force someone to have a Covid-19 vaccination against their will. Once again, the answer is NO but they do have a duty to protect their 5 million citizens.
NZ now has access to a Covid-19 vaccine that appears to be effective. What choice should the government make about compulsory vaccination?
Most International Human Rights Treaties support any Government’s duty to protect their people, but they don’t talk specifically about a person’s right to refuse medical treatment.
Most Treaties talk about how every person has the right not to be subjected to medical experimentation without free consent; a response to the Nazi medical experiments of the Second World War.
So, on one hand, the Government’s has an obligation to provide its people with the highest possible standard of health and its citizens have a right to expect that. And on the other, each person has the personal right to refuse non-consensual medical treatment.
So how do you balance personal rights of employees and the legal obligations of employers, with the state’s obligation to prevent and control disease? Not easily!
What About Current Law
International Treaties provide guidance about freedom from medical or scientific experimentation with a person’s free consent. I’ve included 3 links below for those who are interested. [1] [2] [3]
Covid-19 is a new disease and though there is a law around the Government’s right to lock down under their current 4-tier system, one question to consider might be; whether forcing every citizen to have a vaccination would be in their best interests of in containing Covid-19.
We know that any law that tries to restrict anyone’s right to stop any intrusion into their bodily integrity would need a statutory change which was consistent with the Bill of Rights Act.
Is Fluoride in Drinking Water Mass Medication?
One NZ case about forced mediation that might help is a Supreme Court ruling about whether fluoridation of water as a Public Health measure was a violation of the right to refuse medical treatment.
The Court found that it was a violation!
Their ruling was that fluoridation is mass medication without consent, and with mounting evidence, it is ineffective and carries significant health risks. Mass medication is similar to non-consensual medical treatment for Covid-19, especially if you disagree with your local council’s decision to provide you with drinking water that contains fluoride.
BUT, the Supreme Court also decided that some Public Health measures could over-ride a person’s right to refuse medical treatment where these were clearly justified.
Clearly justified means there would have to be a reasonable objective in allowing a compulsory vaccination, that justifies placing limits on a person’s right to refuse medical treatment. That limit could only be sufficient to achieve the Public Health outcome and be proportionate to the importance of the mandatory vaccination.
In this fluoride case, by majority, the Court held that if a vaccination (in this case Fluoride) was prescribed by law, it was then necessary to apply a balancing test to determine if the breach of each person’s right not to be subject to medical treatment without consent, was justified.
By majority, they found that Fluoride was prescribed by law.
So, in theory, the Government could over-ride a person’s right to not be vaccinated if they decided they were justified in placing limits on a person’s right to refuse medical treatment. In my opinion, this is highly unlikely with Covid-19 vaccines.
So Where Does That Leave Employers?
Unclear, I would suspect!
At the beginning of the March 2020 Covid-19 lockdown, Employers made decisions about reducing their Employee’s wages down to the Covid Subsidy Rate without consulting them. This has been an expensive decision for many businesses as they listened to competing legal arguments that decreasing wages in a pandemic was necessary for survival and therefore justified, or not.
However, rulings in the Employment Relations Authority, have ruled that employer had an obligation to consult with the employee before they reduced their wages. And if they did not, the employer was entitled to their full wages, Coviid-19 or not.
It will take a Court to clarify whether enforcing Covid-19 vaccinations in some circumstances are justified. This might be in the area of Health, Border and Quarantine workers.
Moving Forward – Suggestions For Employers
My suggestion to Employers is to consult with their Employees thoroughly, Encourage them to carry out their own research into the pros and cons of vaccinations. Suggest they visit sites like the MOH website to find information based on science. And visit sites that are anti the vaccination so they are able to make their own informed decision. Some workers may be able to work at home. That solution would be difficult for retail staff. Be open to original solutions. They may for example, be asked to wear masks and gloves and undertake a rigorous handwashing and sanitising routine.
The best thing is to be authentic and sympathetic to those staff who have fears around the vaccine. But for goodness sake, don’t tell them they can’t return to work without a vaccine or you will be up for a constructive dismissal case which you are unlikely to win.
NB This is my own personal view and opinion and intended to provoke discussion. It is not provided as legal advice. If you need legal advice please contact your own lawyer. Or phone Viv 021243200 or email Viv@resolvelegal.co.nz.
[1] The Universal Declaration of Human Rights (UDHR) (1948) followed the 2nd World War in reaction to the Nazi Regime. Although not legally binding, the contents of the UDHR have been elaborated and incorporated into subsequent international treaties, regional human rights instruments, and national constitutions and legal codes. https://www.un.org/en/universal-declaration-human-rights/
[2] The International Covenant on Civil and Political Rights states the following: “No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation”. 5 July 2008. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
[3] 29/12/2017 — WHO fact sheet on health and human rights with key facts, introduction, … from torture and non-consensual medical treatment and experimentation. … including forced treatment or institutionalization, and disregard of individual legal capacity to make decisions. … Human rights are universal and inalienable (not challengeable) https://www.who.int/news-room/fact-sheets/detail/human-rights-and-health