No Jab, No Job - Really?

The Health and Safety at Work Act (HSW Act) in New Zealand gives employers justification for encouraging employees to vaccinate against Sars-COV-2, the virus responsible for Covid-19 and it's variants. But does it give the all-clear for a blanket mandate for all workers to be vaccinated or lose their jobs? That's debatable.Here's the big issue for employers: its seems like a no-brainer that you would want to impose mandatory vaccination for your workplace. Even perhaps just for particular roles in the workplace. You think that the work that one or more of your workers does puts them or someone else in the workplace at a higher risk of being infected by Covid-19 if they are not vaccinated, so you want to ensure that you have minimised that risk by having only vaccinated persons in that role. After all, you're the PCBU so it's up to you to cover your backside by taking all practicable measures, right? Well, you may want to hold up and rethink that.

First, you have to show that there actually is a safety risk in being unvaccinated. Either the unvaccinated person is unsafe, or someone else in the workplace is at risk from the unvaccinated person. You'll need to be able to explain the level of that risk, preferably in percentages, to the people in the roles you're targeting. Given that currently less than 3% of the world's population has been infected in the last 18 months, we can translate that to NZ's population and safely say that we could expect 146,000 people in NZ to become infected, in a worst case scenario. Likely, that would be less for us because we've already ridden out the worst of the global storm . Given that we also have at least 70% of the population indicating that they will soon be fully vaccinated - one needs to consider what the real likelihood of infection will be when the Ardern Government's (perhaps somewhat ambitious) elimination strategy takes hold. Certainly the risk is greatly reduced by 70% vaccination of the population, is it not? Bear in mind, we know that 90% is not the real target - 70% was always the magic number for safety - so aren't we almost there if the Government simply gives out those second doses?  As for boosters, well the case for universal boosters is weak, and the benefits are unclear. Let's not go there with boosters for the time being.

In any case, then you have to show that the safety risk is greater than the safety risk of everyday life in the community. Is your worker (whether vaccinated or unvaccinated) at any higher risk than they would be if they were playing rugby with unvaccinated people on weekends, attending church every Sunday with unvaccinated people, shopping in malls with unvaccinated people, getting their hair or nails done by unvaccinated people, being visited by unvaccinated people, or even perhaps sleeping or living with unvaccinated people? If you are running a care home, are all visitors and service/tradespeople subject to mandatory vaccination also? Requiring vaccination in employees is pointless if unvaccinated visitors to the workplace are allowed. This virus jumps across hallways between rooms with doors opened only for a few seconds, remember!

And then you have to show that the vaccine itself is not also a safety risk, which considerably affects your risk assessment - just in the other direction. If you coerce an employee to be vaccinated, and they are harmed by that vaccination, then it is arguably a workplace injury and as the PCBU you are responsible for potentially very serious harm. If the injury does turn out to be serious or fatal, that could become more than a minor irritation for you in terms of your Worksafe reporting and subsequent investigation of your risk assessment and analysis. The effectiveness of vaccines against SARS-CoV-2 has been confirmed in real-world studies, but high-quality real-world safety data on the messenger RNA (mRNA)–based Covid-19 vaccines remain relatively sparse in medical and scientific literature.

Once you've done all of that, you have to take into consideration a review of other COVID-19 risk management measures and reasonable alternatives to or additions to vaccination such as continued working from home, testing, social distancing, use of PPE, handwashing and so on. This consideration should also specifically include people unable to have the vaccine, those who are pregnant, trying to conceive or those with an allergic response. It could well transpire that your workplace would be sufficiently assisted by those measures, rather than forcing people to give up their bodily autonomy.

Requiring employee's to vaccinate could very well lead to multiple employment and even criminal claims later if you get it wrong. As the debates rage around the world, here at home we know a number of employee representatives are gearing up for a spate of litigation tests and preparing template grievances and claims.

So, how's your business risk assessment looking so far?