Court sets aside police and defence vaccine mandates – should employers be concerned?

On 25 February 2022, the High Court released its judgment in Yardley v Minister for Workplace Relations and Safety, setting aside the COVID-19 Public Health Response (Specified Work Vaccinations) Order 2021 (the Order) requiring certain Police and NZ Defence Force (NZDF) personnel to be vaccinated against COVID-19.

The Court found that the vaccine mandates in the Order constituted an unjustifiable limitation on rights contained in the New Zealand Bill of Rights Act 1990 (NZBORA); namely, the right to refuse medical treatment and the right to the manifestation of religious belief (being, in this case, the belief that individuals should not be vaccinated with a vaccine that was tested on cells derived from a human foetus).

The Court had the power to take this step, because the vaccine mandates were passed by the Minister for Workplace Relations and Safety, by way of the Order, rather than by Parliament through legislation. Parliament had only empowered the Minister to issue orders, when he was first satisfied that the orders did not impose an unjustifiable limitation on the rights in the NZBORA.

The decision

The five key bases for the Court’s conclusion were:

1. The Order was limited to ensuring continuity of services and public confidence in the Police and the NZDF;

2. The Minister’s evidence was minimal to non-existent in respect of showing how those purposes were met. It did not establish how the few remaining Police and NZDF unvaccinated workers, by virtue of being unvaccinated, would contract and spread COVID-19 to the point that the spread would threaten continuity of services. The Court took account of reduced vaccine efficacy against contracting Omicron (as distinct from protection against severe illness once someone has Omicron);

3. Crucially, the Police and NZDF already had vaccine policies in place, requiring vaccination but allowing for a case-by-case approach, considering the nature of the role and individual circumstances and alternatives. The Court questioned the necessity of the Order on top of those policies;

4. The Court found that workers were not strictly forced to get medical treatment, but the right to refuse medical treatment was still in play, given they faced serious consequences if they did not get vaccinated; and

5. The Court issued its decision at a time when the Government was talking about vaccine mandates having a limited lifespan. The Court may have been swayed by that discussion, juxtaposed against the permanence of losing a job that is an identity and a lifetime commitment for many in the Police and NZDF.

Implications for employers?

The Court’s judgment has limited application for employers whom have implemented vaccine mandates. It pertains to a specific Government mandate which was for a narrow purpose. Private employers do not need to contend with the NZBORA to the same extent either. The NZBORA, whilst relevant to employer’s decisions, binds only the legislative, executive and judicial bodies and certain ‘public’ decisions.

Private employers have broader justifications available to them for vaccine mandates, other than simply ensuring continuity of service. Private entities can focus on health outcomes of workers, including (albeit reduced) hospitalisation and fatality risk. Employers need to consider reduced efficacy of vaccination against infection but can still point to their obligation under the Health and Safety at Work Act 2015 to minimise risks to health and safety where elimination of those risks is not practicable.

Employers can also rely on the risk assessment tool in the COVID-19 Public Health Response (Vaccination Assessment Tool) Regulations 2021. If 3 of the 4 risk factors in that assessment are met, these regulations state that it is reasonable to require a role to be performed by a vaccinated worker. We caution, of-course, that employers are still obliged to go on and exhaust reasonable alternatives to termination before dismissing an employee on the basis of vaccination status.

The Court’s judgment has more relevance for employers contemplating vaccine mandates now, or in future. Those employers need to be cognisant of the following parts of the Court’s judgment in particular:

• The Court referred to evidence questioning the ability for vaccination to significantly limit spread of COVID-19, and particularly Omicron, in the workplace. Employers need to consider this and explain why they believe vaccination will still minimise risk. Employers should read and cite a source, e.g. specific Ministry of Health guidance.
• Employers may also want to consider whether two vaccine doses are enough (or worthwhile on their own) to minimise risk in relation to Omicron, or whether a ‘booster’ is necessary. Employers should turn their mind to the risk of asymptomatic transmission and consider things like daily rapid antigen testing, either as an alternative or an addition to a vaccine mandate.
• The Court gave weight to the fact that the Police and the NZDF already had vaccination policies in place. This appeared to be a strong factor against the necessity of the Order. The benefit of those policies is that they considered roles on a case-by-case basis and looked at individual circumstances and options like working from home. This is exactly the type of individual analysis that employers should take.

Of course, it remains to be seen whether the decision will be challenged by the Minister, and if so, on what basis the superior courts will choose to overturn or uphold the decision. Parliament may also intervene and re-issue an Order based on different (i.e. more ‘justifiable’) reasons and with more evidence. We will be monitoring developments.

For now, keep an eye out as the COVID-19 variants and cases chop and change. It may well impact upon your workplace health and safety risk assessments, and accordingly, your COVID-19 policies and mandates.