Compulsory COVID vaccinations…?

Vaccination is a hot-button issue for many New Zealanders, but never in our lifetime has it been so much at the forefront of our collective conversations.

Given the current rollout of the COVID-19 vaccination throughout the country, questions are being asked about how the vaccine will be administered, who it will be given to, and how the availability of the vaccine will affect the lives and rights of individuals who choose not to be vaccinated.

This week we are looking at the status of early childhood staff and the COVID-19 vaccine.

Our government will not be making vaccination for the general public mandatory and the vaccine will be administered in stages based on the risk level faced by individuals due to their work and living situations.

But now the question is being asked; Can my employer force me to get a COVID-19 vaccination? According to law partner Hamish Kynaston of Buddle Findlay, it depends. 

“An employer, particularly those in certain sectors like aged care, might say if you’re going to work here, you’re going to need to be vaccinated,” he said in an interview with HRD.

“An employee would have a right to decline to do that but the employer in that instance, if their direction was a reasonable and lawful one, might be able to dismiss the employee after considering redeployment or other management options.”

Employment lawyer Phillip Mitchell said in a Stuff.co.nz article it was industry-specific and would need to be approached on a case-by-case basis:

“If the employer could show a good reason why they need to make it mandatory, then they could, similar to how drug testing is necessary in some industries,” Mitchell said.

So how will this apply to those of us working in the early childhood education sector? Considering the exposure risks of working with young children, who can’t reasonably be expected to maintain social distancing or hygiene standards, as well as teachers’ duty of care to the children enrolled in child care services, the answer is: most likely.

And the precedent has already been set for compulsory vaccination across the ditch in Australia, by child care provider Goodstart Early Learning.

An article written by Cecilia Anthony Das and Kenneth Yin, both lecturers at Edith Cowan University in Western Australia, mentions the claimed unfair dismissal of child-care worker Nicole Arnold by Goodstart Early Learning, for refusing to get a flu vaccination. Vaccination against influenza was made a condition of employment by Goodstart in April of 2020, except for those with “exemptions on medical grounds”.

Arnold - a conscientious objector - could not prove a medical exemption but refused to be vaccinated and was subsequently fired. 

She claimed that her dismissal was unlawful, and that her then employer’s insistence that she receive the vaccination could be considered assault and a violation of her human rights and “bodily integrity”, as reported in a Financial Review article.

The claim was overruled by Australia’s Fair Work Commission in November 2020. According to the article, “The commission dismissed Arnold’s application to have her case heard on the basis Goodstart’s vaccination policy was arguably reasonable to satisfy its duty of care to children, while Arnold’s refusal was arguably unreasonable.” 

This ruling shows us that there is validity to employers in the ECE sector making COVID-19 vaccination a condition of employment in their facilities, because of the exposure and transmission risks of adults working with children, and because of the risk that poses to young children.

No vaccine has yet been developed that is suitable for use in people under 16. As symptoms in children who have contracted the virus have mostly been fairly mild in comparison to other age groups, developing a vaccine for minors has not been seen as a priority.

However, given the ease with which COVID-19 is transmitted, and knowing the transmission rates for communicable diseases within early childhood environments, it is reasonable to expect adults working with very young kids to require vaccination in order to help lower transmission and infection rates.

Vaccination to all residents of New Zealand will be free and will be administered on a voluntary basis to the general public. The vaccine rollout has already begun across the country, with priority being given to those at the highest risk of contracting and transmitting the virus such as those working in border security, managed isolation and quarantine workers, and healthcare professionals who carry out COVID-19 testing.

Early education has not been classed as a high-risk industry in New Zealand, so the vaccine will be made available to ECE workers from mid-2021 along with the rest of the general public.  

To receive the vaccine once it becomes widely available, you will most likely need to visit your GP, medical centre or hauora centre after making an appointment. Most versions of the vaccine require two doses, administered through injection, and have mild side effects including pain at the site of injection, headache, fever, chills, joint pain and nausea. Side effects are said to resolve within a few days of the initial dose and are reportedly significantly milder after the second dose.