Chittenden is the third most vaccinated county in America’s most vaccinated state: Vermont. As of late last week, 87.3% of Chittenden residents over the age of twelve had been vaccinated –close to New Zealand’s unofficial 90% target.
The county is home to the University of Vermont. On the 9th of June, the University joined 473 other American colleges and universities in announcing a campus vaccination mandate. From mid-July, students at the University of Vermont had to be vaccinated.
At Vermont Law School, an hour and a quarter’s drive down I-89 in Windsor County, where vaccination rates are only 78.2%, both staff and students must be vaccinated.
Both schools require that masks be worn indoors.
The Chronicle of Higher Education has been tracking American campuses with vaccination mandates. The number has been rising sharply. Fewer than 500 campuses had announced vaccination mandates by early June. Now over a thousand campuses require it, including campuses in the most vaccinated parts of the most vaccinated state.
The reasons for vaccination mandates are obvious. Viruses transmit easily in lecture theatres and halls of residence. Campus outbreaks endanger immunocompromised staff and students, and their families. They also force lectures to shift online.
Strong measures reducing transmission risk are important for health and safety. They also make a campus more attractive for students and parents worried about Covid. Other schools can cater to students averse to vaccines.
New Zealand’s vaccination rate is far lower than Vermont’s, but hopefully will catch up within the next couple of months. When New Zealand’s vaccination rate is higher, we expect border restrictions will ease.
There will be greater risk of the occasional outbreak, but vaccination will reduce the harm. As border restrictions are relaxed preventing outbreaks will need more layers of defence.
So far, no New Zealand university has announced vaccination requirements for either staff or incoming students.
And it is unclear whether any of them could do so if they wanted to. Legislative change or authorisation through a Public Health Order may be needed first.
In early August, Waikato University Professor of Law Claire Breen noted that the New Zealand Bill of Rights Act prohibits discrimination on a range of prohibited grounds. The Human Rights Act extends that prohibition to government related bodies.
Discriminating against someone with a disability is one of the prohibited grounds of discrimination in the Human Rights Act. It is arguable that being unvaccinated falls within the “prohibited grounds” of discrimination under that Act. That is because an unvaccinated person is unlikely (at least at present) to have Covid-antibodies. When the rest of the population has antibodies, and unvaccinated person arguably has a “disability.”
At the same time, employment law does not allow anyone to require that staff be vaccinated unless the role is especially risky, though official advice notes that that could change if there were a “significant shift” in local Covid rates.
The rules as they stand create something of a Catch-22.
After the vaccination roll-out is completed, the largest group of unvaccinated Kiwis will be children under the age of 12. While they are at less risk of substantial harm from Covid, they certainly can catch it and spread it to vulnerable family members. But a school could not require that its teachers be vaccinated unless 2022 brought outbreaks that vaccination mandates for teachers could help to avoid.
Similarly, universities might not be able to set campus vaccination requirements before outbreaks happened, even though halls of residence and lecture theatres are obvious places where outbreaks might start.
It is like having building codes that ban sprinkler systems unless the building is already on fire.
Even more perversely, the government’s current employment law advice provides no options for vulnerable workers concerned about unvaccinated colleagues.
Workers have a right to refuse work that would expose them to serious risk. But the government advises that, “unless vaccination is needed for health and safety reasons, work is unlikely to be unsafe solely because it is done around unvaccinated workers.”
An employer might wish to set a vaccination mandate for the protection of staff or customers who were either themselves immunocompromised, or who had vulnerable family members. However, it seems it would generally be illegal for that employer to do so. That the rules might change in any widespread outbreak is not particularly comforting.
As things stand, an unvaccinated employee has greater rights than her vulnerable co-worker. It is like banning non-smoking workplaces while prohibiting workers from complaining about the smoker at the next desk.
By December, every New Zealander over age 12 wishing to be vaccinated will have had the opportunity. New Zealand’s vaccination rates will hopefully surpass even Vermont’s. But even with high rates of vaccination, like in Vermont, risks remain. These risks are obvious in workplaces, at schools, and on campuses.
Those wishing to provide greater protection to their workers, customers, and students should be permitted to do so.