‘We didn’t know’ may not be a valid excuse as more data becomes available
The Ministry of Social Development and other agencies sacking unvaccinated staff may end up facing liability challenges.
MSD is going ahead with its no vax, no job Covid-19 vaccination policy, put in place back in mid-December.
The policy gave staff three months to get vaccinated or face termination.
This was an internal policy, not a Government mandate and it flies in the face of last week’s Public Service Commission advice to Government departments and agencies to pause dismissals.
The advice from the Public Service Commission, followed a High Court ruling that vaccine mandates for Police and Defence Force workers was unlawful.
The commission said while the court ruling applied only to Police and the Defence Force, it was a “timely reminder that health and safety risk assessments should be reviewed on a regular basis to maintain their currency and test the assessments against emerging or new advice”.
Dismissals should only occur after all reasonable alternatives have been exhausted and bearing in mind the rapidly changing environment, the Commission said.
The commission recommended agencies “revisit the rationale for any proposed dismissals” and take “legal advice where necessary”.
Employers are bound to think carefully about the benefits and risks of the COVID-19 injections, in light of the milder Omicron strain, the availability of rapid antigen tests and new data emerging about the Pfizer vaccine.
If things go badly wrong in a minefield of legalities, employers like MSD may no longer say they didn’t know.
A Notice of Liability can be served to any organisation or business that is requiring a vaccine passport. making them aware of the harm they are causing by continuing the vaccine roll out. It prevents the recipient from having “plausible deniability” meaning the recipient cannot claim they did not know or comprehend the dangers caused by the vaccination.
The failure to inform and warn the people of New Zealand is considered a failure to act to prevent harm.
These are further obligations for MSD and other employers to consider.
• Under the New Zealand Bill of Rights Act everyone has the right to refuse to undergo any medical treatment.The Act’s provisions include the right not to be subjected to medical or scientific experimentation and the right to refuse to undergo medical treatment.
• Covid-19 orders produced under the Health Act 1956 were revoked or replaced by orders made under the COVID-19 Public Health Response Act 2020. The COVID-19 Public Health Response Amendment Bill (No 2) 2021 amends the 2020 Act. Basically the Director-General of Health can stop anyone doing anything that is deemed to risk spreading Covid-19 but he must be satisfied that the order does not limit, or is a justified limit, on the rights and freedoms in the Bill of Rights.
• The Hippocratic Oath identifies informed consent as central to the practice of medicine. An informed consent includes: describing the clinical issue and suggested treatment, stating alternatives to the suggested treatment, stating risks and benefits of the suggested treatment, stating related uncertainties, assessing the patient's understanding of the information provided and eliciting the patient's consent. Therefore, all risks of serious complications, even if they occur very rarely, need to be stated.
• The Health and Disability Commission Code of Rights includes the right to be treated with respect, the right to freedom from discrimination, coercion, harassment, and exploitation, the right to dignity and independence, the right to services of an appropriate standard, the right to effective communication, the right to be fully informed and the right to make an informed choice and give informed consent.
• If the vaccine is considered to be experimental the Nuremberg Codes apply: the voluntary consent of the human subject is essential. This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision.
• UNESCO’s Universal Declaration on Bioethics and Human Rights promote respect to the dignity of the human person and universal respect for, and observance of, human rights and fundamental freedoms.
While MSD is taking its hard line weighing up health and safety risks of unvaccinated staff against their freedom to not get vaccinated, Fonterra has abandoned its vaccine policy, opting for daily rapid antigen testing and public opinion is shifting away from mandates.
A nationwide poll of 1,000 New Zealanders, surveyed by Curia Market Research, has found increasing opposition to the "no jab no job" mandates and increasing support for rapid antigen testing for unvaccinated Kiwis so that they can keep their job.
One in three vaccinated Kiwis said that the vaccine mandate or pass requirements were a large factor in their decision to get vaccinated.
Nearly 60,000 people have signed a petition asking the House of Representatives to repeal the changes made by the COVID-19 Public Health Response Amendment Act (No 2) 2021. It was presented to Parliament on February 21 and has been reported to Parliament’s petitions committee. The petition reasoned that the Act was in response to the COVID-19 emergency based on the information available in 2020 and 2021. “However, we believe, based on current information, the global response indicates that COVID-19 is no longer an emergency, and we would like New Zealand to remain abreast with other countries that have removed many COVID-19 restrictions, such as UK, France, Ireland, and many Nordic countries.”
In its report, Parliament’s Petitions Committee can make recommendations to the Government about law or policy changes it wishes to see, or actions it believes the Government should take, in response to the matters raised by the petition.
Another petition with the Petitions Committee - “Don’t divide us” - has attracted more than 87,000 signatures. Concerning the right to work and pressure to surrender employment, it refers to the Universal Declaration of Human Rights 1948 and the International Covenant of Economic, Social and Cultural Rights.
So can employers require their employees, upon pain of dismissal, to be vaccinated against Covid-19?
This question has been addressed by Bill Hodge of University of Auckland law school and legal scholar Isabel Ward.
“It all depends”, they say in a Newsroom report, dated October 2021.
On one hand, there is an individual’s legitimate expectation of bodily integrity, and the right not to be subjected to medical treatment without informed consent but the New Zealand Bill of Rights Act is always subject to reasonable and justifiable limitations, they said.
They point out that Health and Safety at Work Act 2015 requires employers to ensure the health and safety of workers and others in that workplace, by steps that are “reasonably practicable.” And an employer may be legally obliged to adhere to specific orders made under relevant Covid-19 legislation.
Employers who operate facilities where members of the public may visit or enter by permission may impose reasonable conditions of entry, and a vaccination passport may become such a condition of entry and if visitors are required to be vaccinated, the employees too will have attained a similar standard.
The employer must manage the risk, by considering whether the work can be done remotely, or from home. The employer must also provide for reasonable and meaningful consultation. “Key to an appropriate process is consultation, consultation, and more consultation”, they said.
While all this is crucial to an employer making a decision that will stand up, Pfizer data, which has finally started to be released to the public, is currently under the spotlight.
Analysis is still underway but there are red flags.
What is seen as particularly alarming is that the Food and Drug Administration had originally requested for these documents to be sealed for 75 years.
Instead, the federal agency has eight months to do so, following a US federal judge's ruling.
Prime Minister Jacinda Ardern has indicated that Government vaccine mandates will be scrapped when they are no longer needed.
A deadline has not been set, but Ardern has said that the strictest Covid settings will be eased after the Omicron peak. We expect to hear more within days.