As vaccination mandates kick in this week for employees working in health, education and corrections, employers are being inundated with applications for exemptions. The grounds commonly relied on for seeking exemptions include medical, religious and ethical beliefs, and the right to freedom from discrimination.
There is no doubt that many people believe deeply that they have the right to refuse to be vaccinated, and that the COVID – 19 Public Health Response (Vaccinations) Order 2021 unlawfully infringes on their human rights. However the legality of the Order has been considered now in a number of legal challenges, in both the High Court and Employment Institutions, and has been upheld each time.
There is, therefore, currently only one legal basis for seeking an exemption, and that is on medical grounds. A persons’ medical or religious beliefs, however strongly or genuinely held, are not included as legitimate grounds for an exemption under the Order. Nor is the right to freedom from discrimination on any other basis. To the contrary, the cases that have considered these arguments have found that limitations on these rights are legally justified given the broader public interest.
In one case the High Court held that the evidence was that the Minister COVID-19 response, Chris Hipkins, had considered these possible grounds for exemptions and had determined not to provide for them. In reaching this finding the Court noted the advice of the Ministry of Health that it would be easier to determine whether someone had a medical condition which meant that vaccination was not appropriate for them, but this exercise would be much harder if exceptions were allowed for wider circumstances such as religious or ethical beliefs.
So as the law stands, the only basis upon which an exemption to the requirement to be vaccinated can be sought is on medical grounds, and this will be very difficult to get.
In an amendment to the Order issued on 8 November, the process for seeking medical exemptions was tightened up. This was in response to evidence of GPs and medical practitioners coming under pressure to issue certificates in support of medical exemptions.
The process now requires a medical or nurse practitioner to apply to the Director General on behalf of a worker. They will need to provide a certificate stating that they have reviewed the person’s medical history and assessed their state of health, and on this basis they have reasonable grounds for believing that the person meets the specified vaccination exemption criteria.
These criteria are strictly prescribed and include where a person has “long covid”; where they suffered a serious adverse event as a result of a previous dose, resulting in hospitalisation or persistent or significant disability/incapacity; where the person is unable to tolerate vaccination due to a risk of harm to themselves or others; anaphylaxis; myocarditis/pericarditis and other specific heart issues; and where the person has previously been a participant in a vaccine trial.
This sets the bar high and it has been estimated that less than 100 people in New Zealand are likely to be able to meet these criteria. Potentially this will be even less when the Astra Zeneca vaccine becomes available providing an alternative in cases of reaction to the Pfizer drug specifically.
Importantly, medical exemptions can only be granted by the Director General of Health, which will ensure that they are strictly administered. In practice a panel has been established to process applications with delegated authority from the Director General to approve or decline them.
Further, exemptions will only be granted for a maximum period of 6 months. Upon expiry workers will need to reapply and prove that the reason for the exemption still exists.
People seeking medical exemptions should also bear in mind that obtaining one does not provide them with immunity from employment consequences. In this regard employers will still need to conduct a risk assessment for workers who have been granted a medical exemption to determine what mitigations can be put into place to ensure that they can continue to work safely.
This may include additional PPE and/or more regular testing. However it is possible that an employer could conclude that even with these additional measures, the risk of an unvaccinated person in the workplace is too high, and therefore consider dismissal to be the only reasonable option.
Employers who are subject to mandatory vaccination Orders are going to face a number of challenges over the next few months, including dealing with applications for exemptions. It may help, however, that these decisions are effectively out of the hands of those employers. The bottom line is that only the Director General can grant a medical exemption, and there are no other legitimate grounds upon which exemptions to the requirement to be vaccinated can be considered.