The increased vaccination rollout and the government’s vaccinate to operate policy, in conjunction with the covid19 vaccination policy announced by Mario’s Pizzeria which states that unvaccinated workers will remain temporarily laid off while vaccinated workers can return to work, has sparked concern among employees.
Human resources and industrial relations expert Courtney McNish said given the circumstances, an employer had a right to demand employees be vaccinated.
“It’s a workplace instruction, which is different to the terms and conditions of employment, which talks about the responsibilities and obligations of the parties, for the continuance of the contract. However, workplace instructions are a management prerogative that talk about how the job is done.”
He said this is also the thinking based on rulings in the US on the issue. He said, however, that employees need to have consultations with employees and consider people who cannot be vaccinated.
“In the case of Mario’s, they are dealing with food and selling and serving to the public. Given the government’s policy about vaccinate to operate, Mario’s is saying in their document, if their staff is vaccinated and the company has to go into another shutdown, it is very likely, that if all their staff is vaccinated, they won’t be affected, that’s a reasonable conclusion. There is nothing illegal that the company is doing in consideration of government and its policy, and in consideration of its own operations, and they’re not breaching anyone’s constitutional rights.”
McNish advised employers who intended to institute similar measures that they should do proper risk assessments.
“Risk assessments are required under OSHA. You can do a risk assessment of what risk you’re at, if people are vaccinated or not vaccinated, but let’s remember one thing, the rights of one cannot trump the rights of the society. The government has the right to take public health measures to safeguard the health and life of the general public. You have to have good medical reasons, for example: you’re pregnant, or of some religious persuasion which you have to establish to not take the vaccine, you can’t just be an anti-vaxxer for no good reason.”
Equal Opportunity Commission Chairman Ian Roach said he saw no proof that Mario’s was trying to force employees to get vaccinated.
“There’s no law at this time to make this vaccination compulsorily administered to anybody, although this is a lively topic of discussion worldwide. From what I read, they are trying to do their best to persuade their employees and they did it in consultation with them. What I also gained is that there is a medical person on call that will answer questions and address the reasonable circumstances of their employees.
“There’s no hard and fast position that they’re taking, to put it in context they’re considering the welfare of the public if they open for business, their other staff and those will be in contact with them, and they must take a position of safety. They must try to minimise the incidence of anybody being able to get covid19 as much as possible.”
Roach said worldwide it was recognised that it was someone’s fundamental human right to refuse to take the vaccine, but people should also look at the greater good.
“If vaccines are being shown to minimise the incidence of covid19 spreading and having devastation in society, I think all that is reasonable must be done by all to seek the greater good. I’m not seeing anybody taking any militant or unreasonable position. According to them, discussions will continue to find alternatives to absorb those who are not willing to take the vaccination, so there’s no illegality. I’m seeing people trying to encourage and cajole people to do what they believe is in for their welfare and not only them, but the greater society.”
Senior Counsel Sophia Chote said while she was not aware of the specific situation at Mario’s, “the issue of vaccinations of employees, particularly in industries like food industries and so on, would be something that any employer would take very seriously because it will affect the product they are selling to the public.”