Vaccine mandates – legal commentary on Yardley court victory

Please share this story - thanks

By Dentons, Kensington, Swan

The issue of mandating vaccinations is heating up in New Zealand. Much of the focus, by protestors and other commentators, has been directed at the vaccine mandates rolled out by the Government. The much-publicised High Court decision of Yardley v Minister for Workplace Relations and Safety also related to the government mandates and has added fuel to the fire on whether those vaccine mandates should remain in place in light of the Omicron outbreak in New Zealand. But what does all this mean for the mandatory vaccination policies issued by employers?

Some would argue that the Yardley decision is quite narrow in that it was a judicial review relating only to the issue of whether the Public Health Order which mandated vaccination for Police and Defence Force was lawful. Justice Cooke found that it was not necessary, and was therefore unlawful. That Public Health Order is now set aside, and the Police and Defence Force will no doubt be carefully managing various employment issues relating to their unvaccinated employees.

However, the Court in Yardley regarding Omicron should be on an employer’s radar. The medical evidence that the Court approved suggests Omicron is a fundamentally different beast from a health risk perspective, and employers who have rolled out mandatory vaccination policies must now revisit their risk assessments to take into account the particular challenges posed by Omicron. It is an open question whether those mandates should stay in place.

There are some points to consider when reviewing your risk assessments:

  1. The Yardley decision considered the expert immunologist evidence regarding Omicron and found:
    1. That Omicron is highly transmissible, but ultimately the levels of infection drop. That means it has a significant but relatively temporary impact. However, terminations for being unvaccinated are permanent;
    2. The vaccine is likely not as effective at preventing transmission of Omicron (in fact the opposite may be the case as vaccinated people may be asymptomatic); and
    3. The protection offered by vaccination against serious illness and death is high but reduces over time.
  2. The cornerstone of any vaccination policy (or ‘no jab, no office’ policy) is safety, which means that employers must rely on the underlying risk assessment to justify that policy. Those risk assessments must be kept under review – they cannot be done once and then placed in a folder and forgotten about.
  3. The WorkSafe guidance tells us that the key to justifying a mandatory vaccination policy is ‘where the nature of the work itself raises the risk of COVID-19 infection and transmission above the risk faced outside work’. Each role should be considered with that test in mind, particularly given that the risk faced outside work may now be far greater than in a controlled environment at work where other safety options are available. This may not be the case for every role, but it is perhaps no longer a given that the workplace is a higher risk environment than the community.
  4. If the employer is satisfied that the risk is greater, whether the unvaccinated worker is at a higher risk of an adverse outcome from COVID-19 and whether that risk of exposure can be managed in any other way;
  5. Other, potentially more effective, measures are becoming available to manage the potential transmission of the virus, such as RAT tests.
  6. How many of your staff are vaccinated vs unvaccinated.

At its heart, Yardley considered whether mandates are still justified in light of the significant impact on the workers’ rights to refuse medical treatment under s11 of the New Zealand Bill of Rights Act 1990 (NZBORA). The NZBORA does not bind most employers, but we are confident that the Employment Court and Employment Relations Authority will take a close look at the risk assessments which underpin mandatory vaccination policies in light of the significant impact of any mandate on that fundamental human right.

Every risk assessment will be different and, for some roles, mandates may remain legally justified. However, employers must carefully consider the actual current risks posed by the virus at the time of termination. A Delta, elimination-based risk assessment may not suffice for Omicron.

Note: this newsflash does not cover mandating vaccinations for new employees, or complying with mandates by suppliers and customers. That is an entirely separate issue.

Please share this story - thanks