Background
Vaccination mandates have played a significant part in the Government's response to the COVID-19 pandemic. As part of its health response the Government mandated vaccinations on border workers, health and disability sector workers, prison staff, police, defence force personal, education workers and workers of food and drink services, events, close proximity services and indoor exercise facilities.
In addition, many employers imposed vaccine mandates on various roles within their organisations either on health and safety grounds, or because third party clients or customers required them.
There have been a number of challenges to the lawfulness of these mandates since they were imposed. Most have been unsuccessful with the exception the Yardley Decision. The Yardley decision and subsequent government announcements of 21 March 2022 that removed the mandates for Police, NZDF, early childhood and education workers mark a significant shift in the use of vaccine mandates to combat the current Omicron outbreak.
It is now incumbent on employers, if they have not already done so, to consider their own mandates within their organisations to ensure they remain lawful.
The Yardley decision
The Applicants argued that the Vaccinations Order for Police and NZDF staff unjustifiably breached their fundamental rights to refuse medical treatment and freedom of religion under the New Zealand Bill of Rights ACT (NZBORA).
The expressed purpose of the vaccination mandate was to ensure continuity of services that are essential for public safety, national defence, or crisis response and to maintain trust in public services. The Crown failed to satisfy the Court that the Police and NZDF Order achieved its stated purpose of ensuring continuity in policing and defence. In particular, the Court noted:
- The evidence suggested the impact of the Order was limited to a very small number of personnel;
- There was no evidence to show the mandate increased the vaccination numbers beyond that which had already been increased through internal vaccination policy;
- The limited number of people affected by the Order did not affect the ability to provide continuity of services or curtail public trust.
It is important to note that the effectiveness of the Vaccination Order was assessed in relation to the impact of vaccinations on the Omicron variant. This is because the order was only due to take effect from 11.59pm 15 December 2021 which is when Omicron was the prevalent strain.
The Court held that while vaccination is important in protecting individuals against serious illness and death, in relation to the Omicron variant, there was little to no evidence to suggest that it was effective at preventing transmission. It therefore had little impact on continuity of service and the mandate was set aside. The Crown has appealed this decision and we await the outcome of that appeal.
Subsequent Court decision - Education and Health Care Workers
A subsequent High Court decision brought by education and health care workers had a different outcome to the Yardley decision. In that case, the Court held the vaccination order for education and health and disability sector workers was a demonstrably justified limit on the right to refuse medical treatment and freedom of religion contained in the NZBORA.
There were two main distinguishing features from the Yardley Decision. The first is the purpose of the mandate which was to "prevent, and limit the risk of, the outbreak or spread of COVID-19". The second, is the lawfulness of the Vaccination Order which was assessed in relation to the Delta variant and at a time when vaccination levels were much lower.
Employer imposed vaccinate mandates
The removal of the vaccination mandates for Police, NZDF, early childhood and education workers should prompt employers to review their own vaccine mandate positions. Considering the latest data on Omicron, the government's guidance for vaccinations in the workplace has been amended.
According to WorkSafe, the justification for imposing a workforce vaccination mandate is now largely limited to situations where the risk of contracting and transmitting the virus is higher at work than in the community. As such, the threshold has increased, making it harder for employer's to lawfully impose a vaccination mandate on their workers. WorkSafe has also advised employer vaccination requirements should be used carefully, based on public health advice, and are not a suitable first response for managing COVID-19 in most workplaces.
Imposing a vaccine mandate on a worker who is not a health care or border worker will now be difficult to justify, given there has to be an increased risk of contracting the virus when the employee is at work compared to when they are out in the community. An example where this may be justified is where there are particularly vulnerable or immune-compromised employees or people within a workplace who are at risk of more severe illness of catching Omicron than the standard population.
Employers will need to conduct a new health and safety assessment, considering the current situation with Omicron and would only be able to require a vaccinated person to perform the role if there were no other protective measures that could be put in place to sufficiently alleviate the risk.
Implications for those who have lost their jobs as a result of vaccine mandates
The removal of these mandates does not automatically invalidate an employer's previous decision to terminate an employee when the mandate was in force. The employee is not automatically entitled to get their job back, nor is there any obligation for an employer to offer a former employee their job back.
Employees are however, entitled to raise a personal grievance within 90 days where they feel they have been unjustifiably dismissed.
The situation is different where the employee is still employed but working out their notice period. A termination notice issued pursuant to a vaccination mandate is of no effect if, before the end of the period, the employee is vaccinated or otherwise permitted to work under the relevant COVID-19 order. Good faith obligations would also suggest an employer has an obligation to reoffer an employee their role if the employee is still working out their notice period and technically an employee when the mandate was removed. Alternatively, an employee who was demoted because the role required a vaccine could argue they are entitled to return to their old position depending on the circumstances.
If you have any questions about your employment obligations, please get in touch with our employment law team.
