Untangling vaccination rights and freedoms

Roger Partridge
Insights Newsletter
24 September, 2021

The vaccination phase of the Covid pandemic raises some tricky conflicts. The Government is reluctant to make vaccinations compulsory. And rightly so. Freedom from compulsory medical treatment runs so deep in New Zealand law it is enshrined in the New Zealand Bill of Rights Act.

But just as workers and customers are free to choose not to be vaccinated, firms should be free to choose whether or not to allow the unvaccinated into their workplaces. Faced with the highly contagious Delta variant, vaccine passports (for customers) and vaccine mandates (for staff) are among the few tools available to firms to comply with their obligations to keep their staff and customers safe.

However, for most firms, exercising this freedom requires some changes to the law.

Privacy laws currently prevent most employers from identifying which of their staff are unvaccinated. During a pandemic, this is madness. A law change should permit employers to require staff to disclose whether they have been jabbed.

Restrictions imposed by the Human Rights Act also hinder most firms from keeping unvaccinated customers and workers away from their premises. The Act prohibits firms from discriminating against workers and customers on a range of “prohibited grounds.” One of these grounds is “disability.” Another is “religious belief.”

An inability to have a Covid vaccination on medical grounds counts as a “disability.” This means blanket vaccine passports and vaccine mandates risk breaching the Act’s anti-discrimination provisions. A similar problem arises where a worker or customer opposes vaccination on religious grounds.

Yet surely it is more important that firms are free to keep the unvaccinated from the workplace (and from crowded premises), than it is for the unvaccinated not to be discriminated against? A simple amendment to the Human Rights Act, specific to Covid vaccination status, would solve this problem.

Employment laws also create obstacles for firms wanting to ensure their workplaces are safe for workers and customers. The Human Rights Act aside, employers can make it a condition of employment that new workers are vaccinated. But for most employers, employment laws will prevent them from mandating vaccination as a condition to continued employment for their existing workforce. Changes to the Employment Relations Act are needed to allow this.

These law changes would also serve a greater purpose. The public good demands high vaccination levels. Giving firms the freedom to implement vaccine passports and vaccine mandates will incentivise the holdouts to get vaccinated.

And it will help keep us all safe. As Aucklanders know only too well, without this, all our freedoms are imperilled.

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