Frontline Law represented the applicants in Yardley v Minister for Workplace Relations and Safety, which was the first successful legal challenge to a vaccine mandate in New Zealand. This article is about the wider implications of the recent decision to workplace vaccination policies.
On 15 December 2021 the government mandated that all NZDF and uniformed Police workers must be vaccinated or lose their jobs.
On 25 February 2022 the High Court ruled that the Order was unlawful because it limited the rights of those it affected, and the government had not demonstrated that this limitation was justified.
The Yardley decision was about the vaccine mandate that applied to the NZDF and Police. It did not mean that all other vaccine mandates were unlawful. However, there are some key principles that were used or confirmed by the Court that apply to all vaccination policies:
A vaccination policy must have a purpose that is supported by evidence. It is not enough to assert that requiring vaccination is required for health and safety purposes. An important part of the Yardley case was that expert evidence showed that the Omicron variant is readily transmissible between both vaccinated and unvaccinated people. Put simply, does excluding the 3% of workers who are not fully vaccinated make a difference in keeping the workplace safe?
An employer must reassess a vaccination policy in light of changing circumstances. What was justified when the Alpha or Delta variant was the main threat may not be justified now that the Omicron variant is virtually the only variant. This is supported by the justification test, which is whether an employer’s actions, and how an employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.
A vaccination policy must be flexible. A policy should consider the risk of individual positions and allow alternative working arrangements and redeployment where possible.
Exceptional individual circumstances must be considered. The Court in the Yardley case confirmed that depending on why a person declines vaccination, the right to manifest religion and belief may be engaged. A fair and reasonable employer will consider exceptional individual circumstances before making a decision.
Public employers need to be especially careful. The New Zealand Bill of Rights Act applies to acts done by public, not private entities. Public employers, for example Corrections, Fire and Emergency New Zealand, the New Zealand Defence Force, and others, can only limit individual rights if that limitation is prescribed by law. Whether the Health and Safety at Work Act is a law that can be relied on when making a vaccination policy has not been tested in the Courts, but at minimum there must be a clear link between a vaccine policy which limits individual rights and the law which is used to justify it. That does not mean that private employers can do whatever they want – they must still be justified in making their vaccine policy especially when it could result in someone losing their job.
A consultation process must be undertaken before a vaccination policy is made. While not part of the Yardley case, another key principle is that before making a vaccination policy an employer must consult with affected workers. This means telling employees what is proposed, providing all relevant information including risk assessments, and genuinely considering comment before a decision is made.
We all wish that COVID-19 was not endemic in New Zealand, but it is. Vaccination is an individual decision that should be based on health advice but is ultimately a personal decision. Everyone making a vaccination policy or affected by one should look out for the following “red flags”:
A vaccination policy that is based on a risk assessment that vaccination makes a significant difference to the transmission of COVID-19.
A vaccination policy that is based on a risk assessment that treats all positions the same, even those with minimal contact with members of the public or other workers.
A vaccination policy that was made more than two months ago and has not been reviewed.
A vaccination policy that does not describe how exceptional individual circumstances can be taken into account.
A vaccination policy that does not have clear criteria and options for alternative working arrangements.
Making a vaccination policy can be challenging. Most employers want to get it right, and employees want to be treated fairly. Remember that this is a policy that may result in people losing their jobs, so think carefully about what justification you have. Get advice and get it right, contact Frontline Law on 0800252748 or email@example.com.
 Employment Relations Act 2000, s 103A(2)
 New Zealand Bill of Rights Act 1990, s 3
 New Zealand Bill of Rights Act 1990, s 5.
United We Stand is the group of Police and NZDF members who brought the Yardley case. You can learn more about this group at this link.