NOTE: The New Zealand Government has revoked the ability to apply for medical exemptions as outlined in this article. Please read the update here.
The new Vaccination Order allows for various exemptions and authorizations for groups in relation to health and disability sector, groups in relation to prisons, and groups in relation to affected education services.
The information your employer is required to retain in relation to any exemption or authorisation is:
a confirmation of that fact; and
a copy of the exemption or authorisation.
This is important to consider as you read the remainder of the post. The level of information is not high: which should reflect the level of information you are required to disclose to your employer.
The purpose of this post is to assist you in better understanding the requirements for these exemptions and authorisations, and how to best approach conversations in good faith with your employer.
Clause 7A: Exemption from duty under clause 7
The clause states: An affected person may carry out certain work without being vaccinated if:
the affected person has particular physical or other needs that a suitably qualified health practitioner (in the course of examining the person) determines would make it inappropriate for the person to be vaccinated; and
in any case where the affected person belongs to the "affected items" group (group 6), the relevant PCBU who employs or engages the affected person has provided the register with written confirmation that a suitably qualified health practitioner:
has examined the affected person; and
has determined that vaccinating the affected person would be inappropriate.
The second element will not be discussed: those employees who belong to the group relating to "affected items" have presumably been terminated through the previous Vaccination Order.
Particular physical or other needs
The first requirement is that you must have a particular physical "or other" need.
This would indicate that exemptions could be provided on a wide range of grounds. It is my view that this exemption clause has been extended, as the greater the limitation on the right to refuse medical treatment, the more important it is to have exemptions and safeguards available to prevent discrimination. Therefore, I would consider the best way to define "physical or other need" could be pulled straight from the Human Rights Act 1993:
Physical disability or impairment
Physical illness
Psychiatric illness
Intellectual or psychological disability or impairment
Any other loss or abnormality of psychological, physiological, or anatomical structure or function
The presence in the body of organisms capable of causing illness.
It is my view that the consideration of "other" is to allow considerable discretion for the suitably qualified health practitioner.
Inappropriate
The second requirement is that this particular physical or other need must make it "inappropriate" for you to be vaccinated.
The term "inappropriate" is not defined in the Vaccinations Order: however, it is typically a low threshold. If the threshold were designed to be high, Parliament would have provided that it would be "unsafe" for you to be vaccinated. This means you can ignore all this talk about only 100 people being medical unable to receive the vaccination: that is not the threshold.
By dictionary definition, inappropriate means "not suitable or proper in the circumstances." In the first instance, this means that whether it is appropriate or not for you to be vaccinated, will heavily rely on the circumstances. This means that Parliament was intentional in allowing discretion in the granting of a medical exemption: and as a side note, it would be awfully unjust if those suitably qualified medical practitioners were later disadvantaged or punished for providing medical exemptions.
The only legal definition of "inappropriate" I could find was in case law, in relation to "inappropriate subdivisions" for the purposes of the Resource Management Act 1991.
Yes: I was a little desperate. Bear with me.
The High Court in the New Zealand Rail case considered that "inappropriate" has a wider connotation in the sense that in the overall scale there is likely to be a broader range of things.
The Supreme Court in the King Salmon case held that where the term "inappropriate" is used, the natural meaning should be assessed by what it is that is sought to be protected.
What does this mean?
If I'm right that the purpose of the medical exemptions is to protect our disabled community from discrimination, then whether the exemption is inappropriate should be considered in light of those circumstances. It ought to consider the purpose of our discrimination framework, alongside the purpose of the Vaccination Order: it will be a balancing act, which will include considerations of other forms of risk management, but I consider it will be a low threshold.
It may be worthwhile considering that in the employment jurisdiction, the threshold for burden of proof is: "more likely than not." Perhaps inappropriate would similarly mean "more inappropriate than not", meaning it would only need to be 50.1% inappropriate.
Who knows. Food for thought.
Suitably qualified health practitioner
Thirdly, the assessment needs to be conducted by a suitably qualified health practitioner.
A health practitioner has the same meaning as in section 5(1) of the Health Practitioners Competence Assurance Act 2003.
A health practitioner means a person who is, or is deemed to be, registered with an authority as a practitioner of a particular health profession.
An authority means a body corporate appointed, by or under the Health Health Practitioners Competence Assurance Act 2003, as the body that is, in accordance with this Act, responsible for the registration and oversight of practitioners of a particular health profession.
In looking at the authorities in respect of health professionals, it includes the following practices:
Practice of chiropractic
Practice of dietetics
Practice of medical radiation technology
Practice of medicine
Practice of medical laboratory science
Practice of nursing
Practice of occupational therapy
Practice of optometry
Practice of physiotherapy
Practice of podiatry
Practice of psychology
This means that, basically, the health practitioner must be working in one of these practices. However, many of these practices will not be "suitably qualified" to make an assessment about whether it would be inappropriate for a person not to be vaccinated: it nonetheless provides a good list of available options.
Thought: Religious needs
If the purpose of the medical exemption is to protect against discrimination in general, and the exemption clause allows for "other needs" to be considered: can a person apply for a medical exemption for religious reasons?
I believe there could be an argument.
If Parliament had intended that the only exemptions available could be on medical grounds, then it would have specifically stated this. The term "other needs" is broad and not defined. There will always be room for argument.
I believe that the purpose of having a suitably qualified health practitioner provide the assessment is for consistency: because it is consistent with the 'health' focus of the COVID-19 Public Health Response Act 2020.
Potentially, in this instance, the "suitably qualified" health practitioner should be one who has an extensive understanding of religious grounds for refusing medical treatment.
Responding to a challenge from employer
It is likely that your employer may challenge the medical exemption provided. However, this may be difficult for the employer, given that the medical exemption is unlikely to contain information other than to say the medical practitioner has examined you and has deemed that it would not be appropriate for you to be vaccinated.
It is my view that it is not an employer's duty to seek to discredit a medical practitioner's assessment: however, if you are faced with this situation, you may want to invite your employer to seek a third opinion from an independent health practitioner.
The employer will be required to show how they chose the health practitioner, to ensure they are independent, and will additionally be required to pay for any consultation. The employer will not be entitled to the information from the consultation unless you specifically provide consent.
What if the medical practitioner does not provide an exemption?
I only provide advice on employment law matters: however, there may be avenues available where a health practitioner has refused to provide a medical exemption. It may be worth looking into the Code of Health and Disability Services Consumers' Rights and consider whether it's worthwhile pursuing a complaints process.
Clause 9: Chief Executive may provide authorisation
Clause 9 now only applies staff members of a prison (because the other affected groups have been dismissed under previous Vaccination Orders). It is of little relevance, but for the sake of transparency, I will briefly outline this authorisation.
The chief executive of your employer may authorise an affected person who has not been vaccinated to carry out certain work if the work is:
unanticipated, necessary, and time-critical and cannot be carried out by a person who is not vaccinated; and
must be carried out to prevent the ceasing of operations.
This authorisation must be provided each and every time the person is required to conduct the certain work. This could be appropriate where the "certain work" is a small and unforeseeable part of your role. If an employer did not provide an authorisation, an employee could raise a personal grievance.
However, if you need to enter a place to preserve or protect a person's life, health or safety in an emergency, you do not need approval.
Clause 9A: Director-General may provide authorisation
Your employer could write to the Director-General, to authorise an affected person who is not fully vaccinated to carry out certain work. If your employer refused to write to the Director-General, you could raise a personal grievance for unjustified disadvantage (and this may potentially amount to an unjustified dismissal).
The Director-General may give an authorisation in respect of an affected person only if:
the person has received at least 1 dose of a COVID-19 vaccine (not being the Janssen vaccine); and
the Director-General is satisfied, taking into account the certain work to be carried out by the person, that the receipt of that vaccine adequately prevents, or limits the risk of:
an outbreak of COVID-19; or
the spread of COVID-19.
The Director-General may impose 1 or more conditions on an authorisation (for example, that the affected person meet the vaccination requirements set out in Schedule 3 within a specified time frame).
If the Director-General did not provide an authorisation, the employee would be required to make an application for judicial review at the High Court.
... Maybe the Director-General could be joined to a personal grievance as a controlling third party ... That would be interesting ...
Clause 12A: Minister exemption
Your employer could write to the Minister, applying for an exemption for you. If your employer does not write to the Minister, and it is fair and reasonable that they do so, you may raise a personal grievance for unjustified disadvantage (which may amount to an unjustified dismissal).
In granting the exemption, the Minister must be satisfied, on the basis of the evidence or other information provided, that:
the exemption is necessary or desirable to:
promote the purposes of the Act; and
to prevent significant disruption to essential supply chains, health services, or the essential operations of a prison; and
the extent of the exemption is not broader than is reasonably necessary to address the matters that gave rise to the exemption.
This exemption does not apply to affected education services.
The Minister must consider:
the potential for significant supply chain disruption if the work carried out by a particular person does not occur, including the extent of the risk to the public interest if the work does not occur; and
the extent to which the work is necessary, including whether it could reasonably be delayed to facilitate the vaccination of the persons needed to carry out work; or
performed by other persons who have been vaccinated; and
the public health risk associated with the work.
If the Minister declines to provide an exemption, you may wish to apply to the High Court for a judicial review.
... Maybe the Minister could be joined to a personal grievance as a controlling third party ... That would be interesting ...
Good Faith Communications
First and foremost: we must recognise that any of these exemptions or authorisations will take time. This means you should be upfront with your employer, and request that you be put on leave past 14 November 2021, to allow for these processes to occur.
If you are seeking an assessment from a psychologist, it may take some months to secure an appointment. In this event, I recommend being transparent with your employer, and potentially requesting that you provide a GP medical certificate in the interim.
It is my view that this leave should be paid by your employer. However, you could negotiate with your employer to use your annual leave, or to otherwise conduct alternative tasks and duties which do not fall within the scope of the Vaccination Order.
Your employer is required to consider all reasonable alternatives to termination of employment. They are required to act in good faith, and to be active and constructive in maintaining the employment relationship. This means your employer must not immediately dismiss your concerns, and must seek to engage in a consultation process relating to your potential alternatives.
Keep talking to your employer.
Keep asking questions.
THOUGHTS: Vaccination Passports / Vaccination Certificates
UPDATE: While writing this post, the Government provided further information in relation to vaccination certificates and vaccination passports.
The Government has announced that there will be medical exemptions. However, I am personally concerned that this will put too much power in the hands of private companies. We have seen with the mask mandates that people with mask exemptions are still turned away from stores. How will the government ensure that these people are provided their right to fully participate in society?
Please note that the general rule is that the greater an action infringes on a right contained within the New Zealand Bill of Rights Act 1990, the more safeguards must be put in place: it is about proportionality. This Vaccination Order shows that the medical exemptions available are fairly broad, and I would assume that the medical exemptions available for a sweeping vaccination passport requirement would need to be broader again.
Conclusion
I've written before that the future is bleak. I remain by that statement: however, I refuse to give up on the people.
I will continue to provide people with information and advice, because as an advocate, I consider the best thing I can do by the people is to provide them with certainty and clarity on the process.
I am tired and I am exhausted: however, there aren't enough legal representatives offering their services at an accessible rate. I will continue to assist the people, because that's why I chose to work in the law. The law doesn't change based on who you are or what you believe: the law is the law.
If you need legal advice and I am not available, please contact Te Ara Ture: a pro bono legal service which connects people with lawyers.
Legal AF Limited t/a Ashleigh the Advocate
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