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Flu season hospital work choices: the needle or the mask

18 August 2015

The Waikato District Health Board has introduced a policy that staff receive the current seasonal influenza vaccination.

If they don't, they are required to wear a surgical face mask during the so-called influenza season while undertaking clinical duties or being present in a clinical area.

We are told that three workers have been suspended, that restrictions have been placed on a fourth, and that one worker has been dismissed under the new policy.

Statements attributed anonymously to staff say they are scared that they must either have the flu jab or wear the mask otherwise they will be dismissed.

Another anonymous statement from an employee said that they had seen staff members crying and consumed with rage and frustration while going to be vaccinated.

The DHB defended the new rule saying the policy has been met with widespread acceptance. No doubt the policy was introduced to protect both staff and patients from influenza.

There is an attractive logic in having staff vaccinated or wearing a facemask but the sort of intrusion to peoples personal space provokes a strong emotional response from many.

Is the policy lawful?

A popular catch cry of disgruntled employees, or anyone who feels they have received the sharp end of the stick for that matter, is to allege that their "rights" have been breached.

Occasionally people refer to their rights under the New Zealand Bill of Rights Act (NZBORA).

The most popular of these rights (which is often cited by those who have been caught out speaking less than kindly about their employer) is the right to freedom of speech. Another right is the right to be free from medical treatment.

It is critical to understand who you may assert these rights against, and when you may claim them (with any legal force).

So could upset employees of the Waikato DHB assert their right to refuse medical treatment and refuse to be vaccinated? A case involving the Electrical Union and Mighty River Power gives some guidance on this issue.

In December 2011 MRP amended a drug and alcohol policy which provided for random drug testing. Nearly a year later an employee was instructed to undergo a random drug test.

The employee refused to take the test on the basis of union advice. They said that it was contrary to the collective employment agreement.

The agreement stated that the employer was required to ensure an employee's fitness for work. It said that this was subject to section 11 of the New Zealand Bill of Rights Act. It is this section which says that everyone has the right to refuse to undergo medical treatment.

The Court observed that the Bill of Rights only applied in the exercise of a public function.

This roughly means that these particular rights can only be asserted against entities which act for the government.

An employee working in the private sector is therefore unlikely to meet much success by relying on rights contained in the Bill of Rights.

Furthermore, the Court held that employment relationships fell outside the performance of a public function and the Bill of Rights Act would not apply.

Accordingly, claiming NZBORA rights in relation to matters arising out of an employment relationship may provide you with little success, even if you are employed by the government (although there have been exceptions).

Finally, the Court found that the right to be free from medical treatment did not prevent an employer from collecting samples to complete a drug test.

The Court stated that medical treatment should be interpreted narrowly and refers to the curing of ailments. The provision of specimens was not medical treatment.

Is the flu vaccine medical treatment? While vaccination is certainly closer to medical treatment than taking samples for drug testing, some may argue that it is not medical treatment as no ailment yet exists which needs to be cured. On the other hand, vaccinations are a preventative treatment.

Perhaps the definition of medical treatment requires further consideration? Obviously that is a matter for the Courts to decide. So too is whether the Bill of Rights Act should apply in these circumstances. Finally the Court must consider whether the DHB policy is a reasonable infringement of the right to refuse medical treatment.

Employment relation problems often cross thorny issues such as this, where there is no clear answer.

This dispute will in all likelihood be determined by our Employment Court if a mediated settlement is not reached.

Given the powerful feelings expressed by those affected by the policy both ways I am sure that readers will have unambiguous views about what is acceptable.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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