Vaccine Mandates – Current Position and Issues for Employers

Navigate has contained a number of articles on the legal and employment issues raised by vaccination mandates. In our December 2021 issue we discussed the approach of the Employment Court¹ to an application for interim reinstatement by an airport employee who had lost his job. Our April 2021 issue of Navigate included an article recapping on developments in Judicial Review of vaccine mandates and discussing the High Court’s February 2022 decision in Yardley;² so far, the only successful challenge to a vaccine mandate. Since then there has been another important decision upholding vaccine mandates (NZDSOS³ – discussed below) and of course mandates in certain sectors have been revoked. This article provides an overview of vaccine mandates and considers issues for employers going forward.

Vaccine mandates are Orders made under the COVID-19 Public Health Response Act 2020 (COVID Response Act).

The key Order is the COVID-19 Public Health Response (Vaccinations) Order 2021 which first came into force on 30 April 2021. This Order was made by the Minister for COVID-19 and is often referred to as the Public Health Order (PHO). The PHO has been amended multiple times to bring in and then (recently) remove various sectors from its purview.

The PHO says that “affected workers” are prohibited from working in certain roles and their employers are prohibited from employing them to do so.

The PHO first addressed workers at managed quarantine/isolation facilities and airline/port workers. Following the incursion of the Delta variant into the community in the latter part of last year, it was amended from 25 October 2021 to cover the health and disability, prison, and education sectors with first vaccines required by 15 November 2021 and second vaccines by 1 January 2022. On 3 December 2021 the PHO was amended to extend it to food and drink outlets (where a vaccine pass was required), gyms and other close-proximity businesses.

Since the end of November 2021 and the incursion of Omicron, the situation has evolved. Omicron is much more transmissible, including between vaccinated individuals. It is less serious. Vaccinations and boosters provide less protection against Omicron. The disease is spreading widely so that people are acquiring immunity via that route.

On 25 February 2022, the High Court found that an Order made by the Minister of Workplace Relations and Safety under the COVID Response Act was invalid (Yardley)⁴. This order had been made in December 2021 requiring vaccination for certain NZ Police and NZ Defence Force workers by 1 March 2022. The Minister in that case imposed the mandates to ensure the continuity of public services, that is to avoid disruption due to absenteeism. Justice Cooke found that the limit on fundamental rights (particularly to refuse to undergo medical treatment) was not demonstrably justified in a free and democratic society. This was so given high rates of vaccination amongst defence and police workers and the incursion of the highly transmissible, and milder, Omicron variant.

The PHO remained in force, but subject to regular review. On 4 April 2022, as a result of a review, the PHO was revoked in part. It no longer applies to food/drink outlets, gyms, close proximity businesses and the education sector.

The most recent decision considering the validity of the PHO was delivered by the High Court on 8 April 2022. Justice Cooke in NZDSOS⁵ upheld the lawfulness of the PHO from 25 October 2021 as it applied to the health and disability sector and had applied until 4 April to the education sector. It was accepted there was a breach of the Bill of Rights Act, s11 (right to refuse medical treatment). The question was whether the PHO was a demonstrably justified limit on that right. The Court found it was. Justice Cooke observed that developments in relation to Omicron may put the continuation of vaccine mandates in issue.

The PHO remains in force for managed quarantine and isolation, ports, airports, the health and disability sector and prison service. Furthermore, under the PHO workers in these sectors are subject to a requirement to receive a booster dose of the vaccine within about six months (183 days) of receiving their second vaccination.

Outside of mandates, employers may require vaccinations and other protections if this is justified after the employer has carried out a health and safety assessment.

Employers need to continue to act as fair and reasonable employers in terms of the Employment Relations Act 2000.

Employers also need to be mindful of the provisions of Schedule 3A, clause 3 to that Act. This provides that employers can terminate the employment of staff who have not been vaccinated as mandated by giving four weeks’ paid notice, or a greater notice period if provided under their employment agreement.⁶ Before giving notice, however, the employer “must ensure that all other reasonable alternatives that would not lead to termination have been exhausted”. Such alternatives may include working off site, taking annual leave or taking an unpaid leave of absence. Considering alternatives is in any event an aspect of the need to follow a fair process, which also includes informing the employee clearly of the legal requirements, genuine consultation and reaching a decision after considering the employee’s views.

Importantly, clause 3 also provides that the termination notice is cancelled and of no effect if, before the notice expires, the employee becomes vaccinated or “otherwise permitted to perform the work under a COVID-19 order”. But this does not apply if “cancelling the notice would unreasonably disrupt the employer’s business.” So, if an employer has given notice to an employee and the PHO is amended to no longer apply to that person, the notice is cancelled.⁷ But this may not be the case if, for example, the employer has employed a replacement staff member and would then be overstaffed or would have to make the new staff member redundant.

It seems likely that most staff who have been vaccinated (first and second doses) will not be averse to having their boosters within six months. However, there may be resistance from some employees to getting boosted. For example, they may say that extensive community transmission of Omicron makes this unnecessary, or they have had Omicron. Employers will need to act fairly and reasonably, while also complying with their obligations under the PHO – that is to ensure that an employee who has not been boosted is not working in a prohibited way.

The PHO does not negate the need in some cases to carry out health and safety risk assessments. For example, it could be appropriate for particular employers in the health sector to have more stringent requirements around when employees should be boosted.

The landscape is changing rapidly. However, employers cannot be expected to second guess the complexities of the evolving pandemic and the government’s response to it. The reasonableness of an employer’s actions will be assessed by the situation at the time the decision is made.⁸

Such employers need to take care regarding employees still under notice at the time a mandate is revoked, as mentioned above.

This may be a particular issue in education where the mandate was revoked from 4 April 2022. Teachers in state schools are usually given two months’ notice as required under their Collective Employment Agreements. In some cases, the mandate will have ended part way through that notice period. Schools, and other employers, need to be mindful that this means the termination notice is cancelled, unless it would unreasonably disrupt the employer’s business.

The lack of an ongoing mandate does not excuse an employer from considering health and safety in relation to COVID in connection with its particular business and circumstances. A health and safety risk assessment should consider any need for ongoing vaccination requirements, as well as policies around coming into the workplace when unwell and testing protocols.

Schools and other employers will be facing personal grievances brought by employees whose employment was terminated as a result of a mandate which has been revoked. Some of those employees will be seeking reinstatement. While the mandate remained in place, reinstatement was unlikely to be “practicable and reasonable” (Employment Relations Act, s 125). This changes once the mandate has gone.

The situation is fluid and evolving. Mandates can be revoked following ministry review or as a result of a successful challenge in the High Court. An employer’s actions will be assessed by the Employment Relations Authority, and the Employment Court at the relevant time, not with hindsight.

An employer who has followed a fair process mindful of schedule 3A to the Employment Relations Act, and made a reasonable decision at the relevant time, will be best placed to defend personal grievances brought by employees.

This publication is intended as a general overview and discussion of the content dealt with. It should not be used in any specific situation, in which case you should seek specific legal advice.