News & Thinking

Are vaccine mandates under threat?

Contributed by:

Anne Wilson
Partner

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Anne Wilson


Kathryn McKinney
Partner

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Kathryn McKinney


Grant Nicholson
Partner

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Grant Nicholson

Giuliana Petronelli

Giuliana Petronelli
Associate

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Giuliana Petronelli


Lauren Dennehy
Solicitor

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Lauren Dennehy


As we head into the peak of Omicron, vaccine mandates remain highly contentious and the subject of prolonged protests around the country. Rather than joining the protest, three Police and Defence Force workers have convinced the High Court that the order requiring them to be vaccinated should be quashed.

The order, which required Police and Defence force workers to be vaccinated by 1 March 2022 or face termination of their employment, was made under the COVID-19 Public Health Response (Specified Work Vaccinations) Order 2021 (Order).

The Court held that the Order was unlawful because it was not a reasonable limit to the workers’ rights under the New Zealand Bill of Rights Act (NZBORA) to refuse medical treatment or to object to a vaccine that has been tested using cells derived from human foetuses on religious grounds.

The Court was not convinced that the mandates were necessary as there wasn’t a real threat to the continuity of these essential services posed by unvaccinated workers given the relatively small proportion of unvaccinated workers at the time the Order was introduced and the evidence that vaccination does not prevent persons contracting or spreading COVID-19, particularly with the Omicron variant.

Similar judicial review challenges made to mandates applying to customs workers and midwives were dismissed by the High Court in the last quarter of 2021, before the Omicron variant took hold in our communities. At that time, the High Court made it clear that when the virus became endemic it would be open to question whether the vaccine mandates would be a justified limitation on the right to refuse medical treatment under the NZBORA. That time is now.

The purpose of the Order covering the Police and Defence Force was to prevent services from being unable to function due to large numbers of worker being away sick for long periods of time and the Court’s decision centred around the mandate not achieving that purpose. Justice Cooke was careful to make it clear that the Police and Defence Force case was not a decision about an order that was implemented for the purposes of limiting the spread of COVID-19 (which is the purpose behind the mandates applying to ‘essential services’; health care workers, teachers and customs workers) signalling that a different conclusion may be reached for the other vaccination mandates in place.

Despite this, it is hard to see how the High Court will reach a different conclusion for other mandates, when Omicron is so widespread and there is evidence that vaccination does not prevent or limit the risk of spread of Omicron. A claim against vaccine mandates brought by teachers and doctors, which may have wider implications for vaccine mandates across all sectors, is due to be heard shortly, so we will not have to wait too long for an answer.

Is this the end of mandates? Not yet.

Businesses covered by mandates, or who can justify that vaccination is necessary on health and safety grounds can still enforce vaccination mandates until the Court decides otherwise. However, employers should, if they haven’t already done so, review their health and safety risk assessments in light of the current environment, to determine whether compulsory vaccination, including boosters, is still required and justified in their workplaces now that Omicron is widespread.