What does the Defence Force / Police COVID-19 vaccination mandate decision mean for employment?

This week, the High Court has ruled that Health Order vaccine mandates issued for Police and Defence workers were unlawful[1]. The Court deemed this vaccine mandate to be an unjustified limitation on the right to refuse medical treatment and the right to manifest religious beliefs. It set aside the vaccine mandate as invalid and unenforceable for these workers. 

What does this mean for the mandatory vaccination of workers? 

The case is limited in its broader application, supports vaccination in terms of reducing the severity of COVID-19, and supports a risk-based approach to introducing vaccination requirements in the workplace. Simply put, employers shouldn’t panic. 

The Police and Defence Force vaccine mandate

The COVID-19 Public Health Response (Specified Work Vaccinations) Order 2021 was introduced in December 2021 (the mandate) [2]. It required that by 1 March 2022, certain work carried out by Police and Defence Force personnel could only be undertaken by workers who had been vaccinated. This was in addition to existing vaccination policies introduced by Police and the Defence Force.

The claim

Three Police and Defence Force workers who did not wish to be vaccinated, and who faced termination of their employment if they weren’t, raised judicial review proceedings, seeking a judgment that the Order was unlawful. [3]

Other vaccine mandate decisions

This is not the first decision to challenge a vaccine mandate:

• In September 2021 the High Court dismissed a challenge to an order bought by a former employee of the New Zealand Customs Service who had her employment terminated. [4]
• In October 2021 the High Court dismissed a challenge to the Order relating to Customs employees, including the argument that the Order breached the New Zealand Bill of Rights Act by being an unjustified limit on the right to refuse to undergo any medical treatment (concluding that the Order was a justified limitation on that right). [5]
• In November 2021 the High Court dismissed a claim advanced by certain midwives affected by a vaccine mandate, together with the first part of a challenge to the mandate brought by certain teachers and doctors. [6] 

The High Court’s decision in relation to the Police and Defence Force vaccine mandate

Cooke J, highlighted the purpose of the mandate was not to prevent the spread of COVID-19. Instead, the stated purpose was to ensure the continuity of public services, and to promote public confidence in those services. 

The Court dismissed some grounds of the claim, stating that the mandate order was consistent with the purposes of the COVID-19 Response Act, did not suspend other legislation, and was consistent with Treaty obligations.

However, what was upheld was the claim that the mandate was an unjustified limit on rights in the New Zealand Bill of Rights Act. Specifically, the section 11 right to refuse medical treatment and section 15 right to manifest religion. The consequences of the limits on those rights was the termination and loss of employment of those who declined vaccination.

The High Court held that the Crown had not sufficiently demonstrated that in the current context of COVID-19, requiring mandatory vaccinations would meet the purpose of the mandate; being ensuring continuity of services and promote public confidence.

The High Court ruled that:

• There was a lack of evidence that the mandate would have increased vaccination rates differently to those achieved under internal Police or Defence Force policy.
• There was a lack of evidence that vaccination significantly reduces the risk of transmission of COVID-19 in the Omicron variant, and therefore the relatively small number of unvaccinated individuals would not make a difference to the risk of widespread transmission throughout the Police and Defence Force.
• Although evidence demonstrated that vaccination provides protection from serious illness, there was a lack of evidence that the protective effect would significantly contribute to maintaining the continuity of the Police and Defence Force services.
• Public health advice provided to the Government was that further mandates were not required to limit the spread of COVID-19.

In this context, the Court was not satisfied that continuity of Police and Defence Force services was materially advanced by the mandatory vaccination order for Police and Defence Force. When weighed against the significant impact of the mandate on individuals, which included the termination of employment and loss of income, the Court ruled that the mandate had an unjustifiably disproportionate effect.

The Court also noted that there were other lawful measures available to the Government which would have minimised the impact on individuals. This included using the existing policies of the Police and Defence Force to deal with unvaccinated staff, based on an individualised risk assessment. The effect of the mandate was the inability to consider redeployment or suspension, as opposed to termination. This was inconsistent with the obligation to take an approach of minimal rights infringement, in order to meet a desired public policy outcome. 

Does the decision mean all vaccination mandates under Public Health Orders are unenforceable?

No. The High Court made clear that its judgment is limited to the circumstances. It only deals with mandates that were issued for the purpose of maintaining continuity of public services. Other vaccine mandates are covered by different Public Health Orders.

However, expect that the case has prompted the Crown to review all vaccine mandates in light of the COVID-19 Omicron variant, the ongoing presence of the COVID-19 Delta variant, and what we know about the efficacy of vaccines to prevent transmission, to determine whether there remains a continued justification for the mandates to be in effect.

What does the judgment mean for private businesses?

In respect of businesses, the High Court’s decision indicates that an individualised, risk-based approach to addressing vaccine requirements for workers is preferable to broad mandates. 

This is consistent with the expectation that prior to the implementation of policies requiring vaccination, a risk assessment is undertaken and applied by the employer, i.e. that a role requires a vaccinated worker to undertake the responsibilities because it is deemed high risk. Further, that when applying a policy requiring vaccination in the workplace, the employer must consider all relevant circumstances (including the possibility of prior to taking steps to terminate employment.

The judgment clearly supports vaccination, particularly given its effectiveness in reducing the severity of the impact of COVID-19. However, as with any risk-assessment, businesses should be ensuring a regular review of their risk-assessment as community transmission increases (and the potential impact of the different COVID-19 variants in the New Zealand environment becomes evident).

Also of significance to business, is that the Court endorsed people’s right to uphold the freedom of their religious beliefs. Accordingly, there will need to be appropriate consideration of this ground if an employee is raising an objection to vaccination on this basis. 

Employers should also be properly considering whether reasonable accommodations can be made where employees raise genuinely held concerns/objections to vaccination in the workplace, e.g. on religious grounds. 

If you have any questions about how COVID-19 vaccination is being managed in your workplace, the specialist employment team at DTI Lawyers is here to assist. You are welcome to call us on 07 282 0174 or email us directly: andrea@dtilawyers.co.nz