Here is what to do when staff at a medical centre have indicated that they did not want to be vaccinated against Covid-19. The recent medicolegal enquiry reached us before the result of two cases of job loss resulting from refusal to be vaccinated being challenged in the High Court and by the government’s announcement of a new legislation outlining workplace vaccination requirements (Covid-19 Public Health Response (Vaccinations) Order 2021).
So where are we at? A recent Government Order, which legally came into effect at 11:59pm in October 2021, requires all regulated health practitioners including those in non-clinical roles to be vaccinated. This requires those workers to be fully vaccinated by 1st of January 2022.
High Court Case 1
Does this breach Human Rights?
Justice Churchman found “To the extent that the order infringed the rights protected by ss 11 and 19 of the New Zealand Bill of Rights Act, the infringement was no more than was justified in a free and democratic society. In judicial review proceedings it was not appropriate for the court to second-guess the policy decisions made by the minister. Those decisions were logical and rational on the basis of the available evidence - Balancing human rights in a Covid environment
The Government measures to combat Covid-19 are extraordinary and place significant restrictions on New Zealanders’ human rights. Even during a pandemic, everyone has human rights and freedoms under the New Zealand Bill of Rights Act and the Human Rights Act. However, there are times when limiting these rights and freedoms can be justified under section 5 of the New Zealand Bill of Rights Act.
The Covid-19 pandemic raises complex questions about when these restrictions are justified, and where the balance lies between individual rights and freedoms and the right to health, which includes public health and safety. The right to health is a human right protected under both the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights (ICESCR), which New Zealand is a State party to.
In fact, under the ICESCR, States must take necessary steps to prevent, treat and control epidemic diseases in order to realise the right to health. The Committee on Economic, Social and Cultural Rights, the UN treaty body for the ICESCR, has emphasised that States must ensure public health measures are reasonable and proportionate to protect all human rights.
A recent case in the High Court provides a useful example of how the Courts approach these questions. The case was a judicial review of the COVID-19 Public Health Response (Vaccinations) Order 2021 by a former Customs worker who lost their job after they refused to get vaccinated for Covid-19. As part of the judicial review, the High Court considered whether the Order infringed on the right to be free from discrimination under the New Zealand Bill of Rights Act.
Ultimately, the High Court decided that it did not. In coming to this conclusion, the judge wrote “the Court’s task in this case is to balance the benefit of the vaccine and the risk of being unvaccinated against any discrimination in relation to those affected".
The judge went on to say that if the benefits of the vaccine outweighed the potential discrimination against the affected employee, then the limitation of rights under the Order was proportionate and justified under the New Zealand Bill of Rights Act. In this case, the judge decided the scientific support for the vaccine and the benefits of the Order to the wider community outweighed any potential discrimination against that employee.
This approach to balancing rights will of course depend on the particular issue and context. For example, the Human Rights Act applies differently to public decision-makers compared to private entities, such as businesses. What is ultimately important is that human rights guide decision-making, whether by government decision-makers or businesses. The Human Rights Commission encourages businesses, service providers and employers to seek legal advice to ensure their Covid-19 policies do not breach the rights of others.
High Court Case 2
This case involved four aviation security personnel who lost their jobs for not getting vaccinated and is still before the court at time of writing.
For non-regulated health workers, WorkSafe has published guidelines for businesses with regards to when workers need to be vaccinated.
https://www.employment.govt.nz/leave-and-holidays/ other-types-of-leave/coronavirus-workplace/covid-19-vaccination-and-employment/ coronavirus-workplace/covid-19-Vaccines and the workplace » Employment New Zealand
We have noted law firms are following this issue closely, so it is worth watching sites such as LinkedIn or local employment law firm’s websites.