‘No jab, no job’ – it’s a catchy phrase, but is it legal?

This week a message arrived from a reader worried about being compelled by their boss to take the Covid vaccine. Fit, young and healthy – their argument is that they don’t line up each winter to get the company’s free flu jab, so why get a Covid jab?

Well, we are hearing in the media phrases such as ‘no jab, no job’. And to me that truly is a frightening prospect for those who do not want to undergo a forced medical treatment. To be injected with something against their wishes just to have (or keep) a job.

A lawyer writes

Auckland lawyer Kylie Dunn of Russell McVeagh published her thoughts on the dilemma here. She concludes that strong employer support for vaccinations is lawful.

She’s right. Supporting an authorised medical treatment is not unlawful. Forcing it on people may be another matter, although one could argue that fluoride in tap water could be deemed by some as a forced medical treatment.

Dunn says: “Making vaccination compulsory for employees may not be lawful unless an employer indicates a willingness to consider exceptions.”

My opinion is that Dunn is that employment law has not changed as a result of covid-19, and no employer can compel a person to have a medical treatment against their wishes.

Dunn says: “Exceptions could be targeted at employees who are not able to be vaccinated for physical health reasons, but could also consider the circumstances of anyone who has a philosophical objection.”

Which in my mind might be good balanced general legal advice; but could leaves an employee not wanting a vaccination to dream up some excuse to avoid the needle, rather than just being free to say “thanks, but no thanks” without risking a workplace dispute.

I wager it will be an employment court decision in a year or two that will establish the case law on whether employers can discriminate against employees who refuse a vaccine or are un-vaccinated. Let’s remember that vaccinated people can still catch the virus, be infected, and pass it on. The best a vaccine can do – if it works – is reduce symptoms of an infection. Vaccinated people only protect themselves. Meanwhile…

Flu jabs

The annual flu jab is freely given by many employers to reduce staff sick days during winter. It’s a numbers game – a $40 flu jab is cheaper than paying five days’ sick leave and the impact that can have on the day-to-day running of a business.

As far as I know – and I am more than happy to be corrected by a peer-reviewed scientific paper – the job of a vaccine is to prevent the vaccinated person from feeling unwell should they catch the virus the vaccine should protect them from. In other words; even Covid-19 vaccinated people could catch the (Covid) virus (but may not know it).

Just to sidestep a moment… I have a July 1994 copy of National Geographic (Vol 186 No 1) which has a whole feature about viruses. Coronavirus is mentioned as one of four annual ‘common cold’ viruses (along with Adenoviruses, Myxoviruses and Rhinoviruses). In the feature, virologist Jack Gwaltney says cold viruses are always mutating (new strains). Covid is no different.

But back to the issue at hand. Can employees refuse to be vaccinated by their employer without being disadvantaged?

It’s something the UK Medical Freedom Alliance, together with Lawyers for Liberty, and the Workers of England Union have covered off in an Open Letter PDF. It’s conclusions are based on English law, and so it’s likely much of what it says can be applied to New Zealand in one way or another (I’m not a lawyer).

Part of the group’s letter says: “It is an established principle in English Law that an individual with the capacity to consent cannot and should not be compelled to have any medical treatment against their wishes.”

Employment contract

Then there’s the issue of the employment contract. To this the letter says: “An individual’s employment is governed by a Contract of Employment (“the Contract”). This contains the terms and conditions regulating the working relationship between the employer and the employee. Any material changes to this Contract can normally only be made with the agreement of both parties.

“Consequently, if the Contract does not contain a specific clause to require a vaccine for Covid-19, then the employer is, in most cases, unable to unilaterally change the Contract and insist on a vaccine being a condition of the employment.

“If the employer nevertheless continues to unilaterally change the Contract, such a change is likely to be a breach of the Contract.

“If an employer requests evidence of vaccination from its employees, this in itself gives rise to significant data protection issues and privacy law concerns…”

Vaccines for new employees

The Open Letter states:

“Some employers are now reported as stating that they will make the vaccine a condition of employment being granted to new employees. Again, we have grave concerns over mandating vaccinations for the following reasons…which would apply equally to existing employees and job seekers (including apprentices and work experience and similar classes of workers):

  1. The questionable efficacy of the vaccine
  2.  The potential for psychological and physical harm caused by the vaccine and/or the vaccine mandate to the employee
  3. The potential that such a mandate may be considered indirect discrimination, as many people may be unable to have the vaccine…
  4. The issue of informed consent which applies to all medical interventions”

Ethical issues

The Open Letter runs on for seven pages followed by a full page of links to source material. But in summary it concludes…

“We understand there is a natural desire for many employers to protect their workforce and customers. However, in the context of Covid-19 vaccines, this desire should be weighed against the wider legal and ethical issues surrounding a policy of vaccine mandate as well as the state of the existing evidence on Covid-19 vaccine safety and efficacy.

“It is important to fully acknowledge the current available scientific evidence regarding the efficacy and safety of this vaccine. Employers should be alive to the pitfalls of a misguided or misjudged approach to these issues and should seek legal advice if in any doubt.

“Employers must appreciate that the employee and job seeker have certain legal rights and that ultimately the employee’s decision must be respected and upheld, without penalty.”

My feeling is that there is a lot of social pressure for people to accept the vaccine; even if it isn’t 100% effective, and even if you’ll need another one later, or every year thereafter, or that people have died after being vaccinated (Bloomberg story here). No matter which way you cut it, vaccines have normally taken 7 to 10 years to test and refine before being given to the general public. Viruses do not evaporate – we just become immune to them.

It appears at least one New Zealand union supports the vaccination of its members (I’m sure they must have sought a mandate from members by way of a ballot for this position).

Employer responsibility

Should a member of staff who is cohersed to be vaccinated by their employer suffer harm, will the employer, or the member of staff’s manager, be held to account? Will it be deemed a workplace injury under the ACC scheme?

A spokesperson for ACC says:

Injuries that result from vaccines can be covered by ACC, and are classified as Treatment Injuries. There are three core requirements which need to be met for a treatment injury claim to be accepted:

  • An injury has occurred that has resulted in physical harm or damage
  • The injury has been caused by treatment provided by a registered health professional
  • The injury is not a necessary part, or an ordinary consequence, of treatment

Where a treatment claim is accepted, ACC will pay or contribute to the cost of treatment, rehabilitation and compensation.

For more information about Treatment Injuries see: https://www.acc.co.nz/for-providers/treatment-safety/

Human rights

New Zealand’s Human Rights Commission’s chief legal advisor, John Hancock says in a written statement: “The issue of workplace COVID vaccinations raises competing rights and duties.

“Section 11 of the New Zealand Bill of Rights Act provides that all people have the right to refuse medical treatment. Furthermore, vaccination in New Zealand is not mandatory and the Ministry of Health has indicated that the COVID vaccine will not be an exception in this respect.

“However, under the Health and Safety at Work Act, employers have a duty to eliminate risks to health and safety or to minimise those risks if elimination is not reasonably practicable. The types of measures that need to be taken to minimise health and safety risks will also vary between different workplaces.

“The Human Rights Commission also notes that compulsory vaccination may pose health risks for persons with other underlying health conditions or disabilities. Accordingly, a workplace vaccination policy that does not reasonably accommodate the needs of disabled workers for whom vaccination may not be safe, may have the effect of constituting unlawful disability discrimination under the Human Rights Act.

“Overall, this is a complex issue and the Commission welcomes the development of guidance for businesses and workers on employment law implications regarding the availability of COVID-19 vaccinations currently being prepared by the Ministry of Business, Innovation and Employment (MBIE), in consultation with WorkSafe, New Zealand Council of Trade Unions, and Business NZ. We encourage MBIE to ensure that human rights are front and centre in such guidance.”

Many people having looked at the ingredients of a vaccine may decide it’s not for them. Others may prefer not to risk being injected at such as early stage of the vaccine’s rollout – particularly as the vaccine manufacturers will not be held to account should it make someone ill. Others may be perfectly fine and queue up to be vaccinated.

It doesn’t matter what your decision is; so long as your decision is respected and accepted.