Don’t quit your mandate yet…

The decision of the High Court in Yardley v Minister for Workplace Relations and Safety & Anors [2022] NZHC 291 has recently gained interest in “overturning vaccine mandates.” However, by no means does this case stop employers lawfully mandating vaccinations in the workplace – at least for now.

This was a judicial review proceeding brought by three Police and Defence Force (NZDF) workers against the COVID-19 Public Health Response (Specified Work Vaccinations) Order 2021 (the Order). The High Court found that the Order imposed an unjustified limitation on the applicants' rights, and that the limit was not demonstrably justified. The purpose of the Order was to ensure the continuity of public services and promote public confidence in those services. The purpose of the Order was different to past orders, which had a focus on the prevention of the spread of COVID-19.  The Court was not satisfied that “continuity of these services is materially advanced by the Order”. The number of workers affected across both the Police and NZDF was very small, and Cooke J determined that there was no real evidence that the effect of the Order on such a small number made any material difference to the continuity of services. Cooke J also determined that the threat of the Omicron variant existed for both vaccinated and unvaccinated staff and it was found that the Order did not make a material difference in that regard. The Order was accordingly set aside. Cooke J emphasised that his ruling applied only to the Police and NZDF mandates and does not affect other mandates or internal vaccination policies. For our clients, it therefore has no direct bearing on your COVID-19 response.

Employment takeaway 

Whilst limited in its applicability, the general takeaway is that an employer’s COVID-19 response should be flexible as the country’s response changes. Policies were initially drafted to prevent COVID-19 outbreaks in their entirety. The focus has changed since the Omicron variant to accepting widespread infection. As a result, employers’ vaccination policies should be reviewed to ensure they fit within the new COVID-19 framework. 

Human Rights/Bill of Rights

There are some findings in the judgment that may leave it exposed to appeal:

• Whilst the onus is on the Crown to justify the limit, the absence of a justification does not draw the opposite conclusion. Cooke J seems to come quite close to saying that the Crown’s failure to explain why internal policies are insufficient proves that they would be adequate. 
• There is an argument that Omicron strengthens the necessity of vaccine mandates rather than weakens it. Its increased infectiousness, the reduction of government isolation requirements and new focus on ‘personal responsibility’ mean that workforce disruption is due to sickness rather than being a close contact. Being vaccinated (and boosted) are the most meaningful measures which prevent severe illness. Despite the paucity of medical evidence, Cooke J begins to make factual assertions on the efficacy of the vaccine and booster against Omicron, and how this is different to Delta. 
• Cooke J notes the uncertainty of new variants counting against the mandates. This seems to assume that the next variant will be milder, and the vaccines less effective. 

This judgment is a reminder that the rights and freedoms in the New Zealand Bill of Rights Act 1990 (the Act) are not only for the majority. In this case that was the right to refuse medical treatment and the right to manifest religion (for those who object to vaccination with a vaccine that has been tested using cells derived from a human foetus on religious grounds, but not otherwise). The judgment is a reminder of the fact that the Act has some teeth.