Our Employment Law Team is led by David Burton. David has written the below article appearing in Stuff News.  Contact David here.

Since the Covid-19 pandemic started, there has been constant balancing between protecting rights and freedoms and protecting the health of the public.

The High Court recently gave a judgment that the vaccine order applying to New Zealand Police and Defence Force is unlawful. Since then, lawyers for some police and defence force staff have demanded that those staff should be able to return to work.

So what does this decision mean for vaccine policies generally? If vaccine mandates for police are not lawful, does this mean they are no longer lawful for other businesses? The short answer is no, businesses are still able to enforce vaccine policies.

There are two avenues an employer may take to require vaccination. In most cases, employers have undertaken their own health and safety assessment and reached a decision that it is necessary for certain staff to be vaccinated. In other cases, such as with police and defence force, vaccine mandates have been imposed following orders from the Government.

Both government orders and health and safety assessments are capable of being challenged. However, the fact a government order has been successfully challenged does not mean a health and safety assessment would be also.

The police and defence force vaccine order was overturned by the High Court because it found it was an unjustified limit on a person’s right to refuse medical treatment and was a limitation on the manifestation of religious beliefs.

The primary rationale given for imposing the vaccine order in question was that it was necessary for “continuity of services that are essential for public safety, national defence, or crisis response and to maintain trust in public services”. The onus was on the Government to show that the vaccine order met this purpose, and that any limitation on certain rights were justified.

At the time the order took effect, there were only 164 unvaccinated police personnel out of close to 11,000 staff impacted by the order. For the Defence Force, just 115 personnel were unvaccinated out of a total personnel count of 15,000.

The court noted there was no evidence that the vaccination order would have materially decreased the number of unvaccinated more than what would have been achieved had internal policies been allowed to operate.

Even still, the court said the order could be a justified limit if the Government could show that the small numbers of unvaccinated staff created a higher risk to the remaining workforce.

The court found, however, that the evidence presented for this was “sparse”. The court found that while vaccines might contribute to the prevention of contracting and spreading the Delta and Omicron variants, this is not nearly as much as with earlier variants.

Given all these things, the court concluded the order did not materially address the threat to continuity of services. For this reason it was not a justified limit on the right to refuse medical treatment or to manifest religious beliefs.

But it is clear what this decision is not. It is not a rejection of the effectiveness of vaccines. In fact, a major justification of the decision to set aside the orders was that both the defence force and police were already highly vaccinated, and the same result was achieved using internal policies.

However, there is still a lesson for all employers that care should be taken for what justifications are given for requiring vaccination. The question should always be asked, does vaccination actually address the risks or concerns held? If sufficient numbers of staff are vaccinated, does termination of remaining staff who are unvaccinated actually reduce the risks to the business or the workers of that business?

The court also noted that termination of staff was permanent, whereas the impact of Covid-19 was temporary. The court suggested that suspension might address any potential problems arising from the current Omicron wave.

This suggestion is highly relevant to recent amendments to the Employment Relations Act which require businesses to ensure they have exhausted all other reasonable alternatives before terminating a person due to them being unvaccinated.

Suspending employees may well be a reasonable alternative to dismissal in some cases. The Prime Minister has said that the vaccine pass and mandate system will lift once we are through the Omicron peak in March. It is anticipated that Omicron infections will peak in mid-March followed by a rapid decline.

It’s not unreasonable then to envisage that vaccine requirements will become less essential in the near future (fingers crossed no other variants of concern arise). This should be kept in mind when considering what reasonable alternatives may exist to dismissal.

The vast majority of New Zealander’s are now vaccinated. And there is strong feeling out there that all New Zealanders should play their part in protecting their own health and others. But among some, there is also a strong feeling that their rights and freedoms are being limited and who do not accept the justifications of this.

As always, cool heads must prevail. All sides in employment relationships should keep open minds and try to explore ways that the interests of both parties can be met.

David Burton/Principal

E: david.burton@mhlaw.co.nz

P: 04 974 4138

Chris Scarrott/Associate

E: chris.scarrott@mhlaw.co.nz

P: 04 974 4175

Calum Cartwright/Associate

E: calum.cartwright@mhlaw.co.nz

P: 04 974 4129