Employers and unions are in talks with the Ministry of Business, Innovation and Employment (MBIE) to work out how to manage border workers who refuse a Covid-19 vaccine.
The consent form for the Covid 19 vaccination at a facility in South Auckland Photo: RNZ / Simon Rogers
So far, 28 border workers have refused to be inoculated three weeks into its rollout.
More than 80 percent of the 15,000-strong workforce in managed isolation and quarantine facilities, and at the border, have received at least one dose of the Pfizer/BioNTech vaccine.
But a handful are holding out leaving their managers scratching their heads trying to decide how to respond.
University of Auckland medical ethicist Tim Dare said if unvaccinated workers were at high-risk of getting the virus, then there may be justification for employers to take steps.
"You're free to do what you want, provided the things you want to do don't pose a risk to other people," Prof Dare said.
"The question with these workers is whether working in those environments, or contexts, does pose a risk to others."
A person's liberty could be infringed upon to stop them from harming others, he said.
But employment law advocate Ashleigh Fechney said there was not a lot an employer could do other than move them to another position.
Forcing someone to be vaccinated would breach the Bill of Rights, because every person could refuse medical treatment, Fechney said.
"What do these employers and the health sector do with these people who aren't wanting to get vaccinated in order to protect not only that employee and everyone else," Fechney said.
"That's when we have to look into those rules of health of safety and it gets quite complicated because you're then saying what is more important, the Bill of Rights Act or health and safety - which is really an unprecedented situation."
Prof Dare said while making vaccinations compulsory for everyone would be wrong, the case might be different for health and border workers.
"You could make the vaccine compulsory in those roles, but you would want to give those people in those roles the option to move rather than be vaccinated," he said.
'We are very united on this'
Vaccine refusal usually came down to misinformation but combating anti-vax propaganda could be difficult, Prof Dare said.
"What we might try and do is communicate more broadly, not just using statistics and threats and so on. Use narratives and stories around the benefits of the vaccine. One of the worries is that if you simply give people stats and horror stories it simply strengthens their opposition," he said.
Employment lawyers were all on the same page when it came to compulsory vaccinations, Fechney said.
"We are very united on this and we haven't been united about anything in Covid so far," she said.
"It seems to be no matter where you turn most employment advocates and lawyers are saying the same thing, that is you can't force your employees to get vaccinated and the important thing to remember is that law and morality are not the same thing."
E tū organiser Mat Danaher said the union accepted some workers would have to be vaccinated to protect public health.
But no-one should be disadvantaged for accepting or refusing a Covid-19 vaccine shot, he said.
"You'll have a small portion of the population who can't be vaccinated - or won't be - and I would argue they should be considered the same and treated the same," Danaher said.
"They may have to be redeployed but they should not suffer any detriment, they shouldn't be deployed for any less money or suffer any other consequences as a result of not being vaccinated."
The Ministry of Health said the 28 border workers who had refused the jab would continue to be offered it, but "the final decision" to get immunised rests with the individual.
