Yesterday’s announcement by the New Zealand government of expanded mandatory vaccination requirements raises important questions about legality and compliance.
Vaccinations will become mandatory for staff in any facility where vaccination certificates are required for customers, including hospitality, hairdressing, and gyms. But our research shows that this will not be without problems.
The new system comes into effect as part of the government’s recently unveiled traffic light protection system, which is key to pulling the country out of its current COVID elimination strategy. The system requires each Regional District Health Council to provide a vaccination rate of at least 90%.
Vaccinations were already authorized for border and other frontline workers in the Public Health Response (Vaccination) Order 2021. Then, on 11 October, mandates were announced for health workers and workers with disabilities and teachers.
Yesterday’s amendment to the public health order expands the vaccine mandate and allows businesses to fire those who refuse to comply.
This is a major shift in politics. Compulsory vaccinations have existed in New Zealand before, between 1863 and 1920 for smallpox control, but compliance has been very low. Since then, New Zealand has relied heavily on education to encourage vaccinations rather than coercion.
Employers generally welcomed the latest news, but how do workers feel about compulsory vaccinations and the new rights granted to employers?
Who Supports Vaccination Requirements?
Our study, conducted between June and August 2021, examined employer support for vaccinations. We surveyed 1,852 New Zealanders and found that 46.4% of the participants agreed or strongly agreed that employers have the right to require employees to prove that they were vaccinated.
Breaking it down, we found that 46.2% of Pakeh, 51.9% of Maori, 25% of Pacifica, and 58.6% of others agree or strongly agree with the workplace’s right to require proof of vaccination.
Looking at this politically, we found that 32.8% of nationals, 52.2% of Labor, 40.9% of Greens, 51.3% of Maori and 32.2% of other voters agree or strongly agree with this requirement.
Read More: Five Decades Ago, Parents Were Satisfied With The Widespread Introduction Of Vaccinations In Schools, But COVID-19 May Be A Different Story
We also asked participants to what extent they supported the employer’s right to fire someone who refuses to get vaccinated.
We found that 56.7% of participants disagreed or strongly disagreed with this employer’s right. Ethnically, 54% of Pakea, 56.5% of Maori, 75% of Pacifica and 44.8% of others disagree or strongly disagree.
By party preference, 69.6% of national, 53% of Labor, 60.9% of Greens, 55.9% of Maori and 64.4% of other voters disagree or strongly disagree.
How will the new law work?
These results indicate that there is limited support for businesses that either know that their employees are vaccinated or have the right to fire them if they are not vaccinated.
On the other hand, businesses seem willing to demand vaccinations due to the duty of caution, but are cautious due to legal uncertainty. The Health and Safety Business Leaders Forum revealed a “strong desire […] take on the responsibility of exercising caution based on risk assessment, ”but the government wants more clarity on how to do this.
For its part, the government signaled that
a new law introducing a clearer and simplified risk assessment process that employers must follow when deciding whether they can require vaccinations for various types of work.
Read More: To be truly ethical, vaccination requirements need to be more than just reducing the number of shots
This law will need to be brought in line with existing legislation in this area. The Bill of Rights Act guarantees the right of citizens to refuse treatment and therefore vaccination. However, the Occupational Health and Safety Act imposes obligations on managers and organizations to assess risks and protect workers and customers from harm.
While businesses may require workers to be vaccinated when they are in certain frontline positions (with higher risks) or support those in frontline positions, how this is ensured remains unclear.
The Occupational Health and Safety Act states that employers must provide a workplace without undue risk and must actively pursue it. However, Health and Safety Watchdog Worksafe recommends that risk assessments take into account the prevalence of COVID-19 in the region.
Thus, while most legislation states that businesses cannot require all employees to be vaccinated, businesses can require that only vaccinated persons fill certain roles associated with certain jobs, but only if the virus is prevalent in a particular area.
This puts companies like Air New Zealand and Auckland Airport, which want to mandate vaccinations for all frontline employees, in a potential legal predicament.
Read more: Vaccination Status – When Your Health Information Is Confidential and When It Is Not
But New Zealand is not alone in grappling with these problems. Many companies in the United States have said they will require vaccinations for all personnel who interact with customers. And many other countries are imposing strict vaccine requirements for various sectors of their workforce.
Such measures are always controversial. Given the results of our own research, which suggest only limited support for employees who need to disclose their vaccine status or the employer’s rights to fire unvaccinated people, they will also be controversial in New Zealand.