Policing the Vaccine

Does the recent Defence Force and Police decision mark the end of vaccine mandates?

The COVID-19 landscape is ever changing and the recent case of Yardley Wallace and a Defence Force Worker v the Minister for Workplace Relations and Safety has added additional confusion as to what policies employers can put in place to stop the spread of COVID-19, and protect their business interests. However, while Yardley has been heralded as a win in the fight against vaccines and mandates, Cooke J made it clear that the ruling did not have far reaching effects and did not nullify any previous decisions concerning vaccine mandates.

It did, however, consider the other tools available to employers to slow the spread of COVID-19, not least of all are Rapid Antigen Tests (RATs). Here we look at how to implement a RAT policy in your workplace, and how to manage some pitfalls that may arise.

The Yardley case also provides legal responses to a lot of talking points that get raised when employers have conversations with employees who do not wish to get vaccinated. An analysis of this case is below.

RAT Policies and Testing at Work: Can you require Employees to be tested for COVID-19?

It is appropriate that, where an employee has been sick with COVID-like symptoms, the Employer can require them to undergo a RAT. Even without a RAT policy in place, an Employer has obligations under the Health and Safety at Work Act 2017 to ensure the safety of its other staff and is liable to penalties if appropriate measures are not put in place to prevent the spread of COVID-19 in the workplace. A requirement to undergo RAT testing is similar to requirements to undergo drug testing.

Employers have the right to require a test, particularly one that is non-invasive. If an employee refuses to undergo a test when there is good cause to suspect they have COVID-19 symptoms, the Employer must take “all practicable steps” to ensure the Employee’s health and safety, and the health and safety of other Employees. This includes requiring the Employee to remain on sick leave until such time as they can produce a negative test result, either RAT or PCR. It is appropriate, and in line with an Employer’s health and safety obligations, to require an employee to stay away from the workplace if it is reasonably suspected that they have COVID-19.

It is important to remember what the Employment Agreement says about employees remaining on sick leave. It is appropriate after 3 days for Employers to require a medical certificate for the Employee to remain on sick leave and, if the Employer suspects that the sick leave is not genuine prior to the 3 days they can require the Employee to undergo medical examination at the Employer’s cost. This includes a COVID test. This means that, if an employee takes sick leave for COVID-like symptoms but refuses to be tested for it, the Employer can require it at their expense.

The use of RATs in the workplace has been encouraged by the Government as a means of tracing and responding to COVID infection in the workplace. The intention is that these are used in conjunction with vaccine policies (where appropriate), social distancing measures, and the Governmental guidelines in respect of self-isolation.

A basic RAT policy should include:

• When an employee must undergo a RAT
• When an employer can require an employee to undergo a RAT
• What the results of a RAT mean for the employee and the business
• How RATs should be administered

At the time of writing, the Government required a 7-day isolation period for people who had tested positive for COVID-19 and the people who live with them. The definition of “close contact” has reduced and the implications for close contacts have been minimised. The responsibility for contact tracing and testing has been shifted out of the Government’s control to Business Owners, Employers, and the individual.

This means that people who are experiencing symptoms should get a test as soon as possible. This can be a test administered by a medical professional (a PCR) or a RAT test which can be self-administered. Bulk packs of RAT tests are available to companies, and they are also stocked at most chemists and supermarkets for consumer use. RAT tests are non-invasive, and they are easy to self-administer.

The extent to which an Employer can act is dependent on what is contained in the Employment Agreement. In some cases, a refusal can amount to serious misconduct and in others, the Employer is within its right to suspend the Employee on the basis of health concerns. If you would like your Employment Contracts reviewed, please get in touch with us.

When in Doubt, Act in Good Faith

Change is the only constant, except in employment. Although the guidelines around COVID-19 are constantly changing, the overarching premise of Good Faith will always be here. That is to say that if you are in doubt as to how to implement a new policy or how to talk to you employees about policies, their obligations, or their rights, remember that you must continue to act in good faith with one another. The three key features of good faith are: 

• Communication
• Transparency
• Understanding

Keep these principles in mind when navigating your way through the changing COVID-19 landscape. If you need further assistance, we will always be here, too.

We have set pricing for Employment Agreement reviews, re-drafts and one-off policies. Contact our Employment Specialists to hear more about how we can help with your Employment Agreements.

At a Glance: Yardley Wallace and a Defence Force Worker v the Minister for Workplace Relations and Safety

This is an overview of the case provided for interest purposes. For in-depth information about vaccine policies and mandates, please contact our Employment Specialists.

The scope of the decision

The Applicants in this case sought to set aside a vaccination order made under the COVID-19 Public Health Response Act 2020 (the Act). The order in question is the Covid-19 Public Health Response (Specified Work Vaccinations) Order 2021 (the Order), which relates only to Uniformed workers in the New Zealand Defence Force and the Police.

This decision therefore does not have (direct) effect over any decisions made by private employers, or indeed any other Government departments. The civilian staff of the Police and Defence Force are not covered by this order, either; both departments have internal policies which deal with the civilian staff as employees.

The Applicants’ challenge

The Applicants’ challenge was based on four main issues:

• Inconsistency with the purpose of the Act
• Inconsistency with the existing NZDF and Police legislation
• Inconsistency with the Treaty of Waitangi
• Breaches of the New Zealand Bill of Rights Act 1990 (BORA), in particular: 
  • Right to refuse medical treatment
  • Freedom from discrimination
  • Right to manifest religion
  • Right to work

The first three issues were dismissed. The argument that the Order was inconsistent with the Act’s purpose was largely based on semantics and an outdated draft of the Act. The Court held that it should not set aside an order formulated to address an issue of public interest, simply because there had been a misdescription of the measure of the Order. The Act also states that Orders made under it cannot be deemed invalid just because they are inconsistent with other legislation.

In respect of the inconsistencies with the Treaty of Waitangi, the Applicants argued that the order disproportionately affected Māori. However, this effect was not proven by their evidence. The Court observed that Covid-19 itself disproportionately affects Māori so it follows that there would be a slight difference between the numbers of Pākehā affected by the Order versus affected Māori.  

Limits on Fundamental Rights

The Courts have considered the right to refuse medical treatment in the context of vaccine mandates already in the case of GF v NZ Customs. GF held that vaccine orders and mandates do limit the right to refuse medical treatment; but the limit was justified in that context. The point is not in dispute in this case.

The question now concerns situations where the limit is on a person’s right to work. This is not a right that is expressly contained in the BORA but as it is contained in international law, it is implicitly a right which New Zealanders have. For the most part, the Employment Court and Employment Relations Authority provide the mechanism for New Zealanders to exercise this right.

The right to Manifest religion was discussed at length and the Court made the point that, where a person felt that the vaccine goes against their belief, it must be a belief rooted in religion and not secularity. The applicants would have to demonstrate that they sincerely believe that a certain practice or belief is required by the religion, and that practice has the appropriate nexus with that religion. The Court focussed on the fact that the stem cells which were used to develop the vaccines are said to have been derived from aborted foetuses, and the religious and medical experts from each side produced conflicting arguments on this. However, it can be said that an objection to the vaccine grounded in a core principle of a Christian religion and objection to abortion is a manifestation of religion.

Therefore, those who refuse the vaccine for religious reasons relating to the use of cells originating from aborted foetuses have had their rights limited by this order.

However, in respect of the freedom from discrimination, there was insufficient evidence of disparate treatment for people who are unvaccinated. The Court noted that there is no evidence, statistical or otherwise, showing that a group is being disadvantaged because of a particular religious belief which they practice.

Justifiable limitations on rights

The Court concluded that only the rights to refuse medical treatment and to manifest religion are limited. The BORA provides that rights can be limited where the limitation can be justified. In this case, given the above findings, the right in question has been distilled to the refusal of medical treatment on the grounds of religious opposition to the use of cells derived from aborted foetuses.

It was significant that the number of uniformed workers affected by the Order was only 279 out of 30,000 workers across both departments. While the argument is presumed to be that this is such a small number of affected workers so the limit must be justifiable; actually, the rights and freedoms concerned are those of the individual. The purpose of the Order was to ensure the continuity of and confidence in essential services. The Crown was unable to show that limiting the rights of such a minor group was necessary to achieve this purpose. For that reason, the order was set aside.

Cooke J’s closing comments

Cooke J provided some closing comments which gave some context to the decision as a whole. He distinguished this case from the earlier cases which affirmed vaccine mandates because, in this case, the need was to ensure continuity and confidence in essential services. This contrasts with the Public Health prerogatives of “avoiding, mitigating or remedying the actual or potential adverse effects of the COVID-19 outbreak”. He also made it clear that the Court’s conclusion should not be understood to question the effectiveness and importance of vaccination.

The main justification for taking a precautionary approach in implementing vaccine policies and mandate is the health risk to the wider public. Policies and mandates implemented for the purposes of limiting the spread of the COVID-19 are still valid.

For more information and specific advice on your employment agreements, please contact our employment team or Abi as below:

Abi Borrows (Lawyer)

Email:  abi.borrows@saunders.co.nz
Mobile: 021 169 3865