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Note: Should you have a medical reason for not being vaccinated against Covid-19 and/or be concerned about termination of your employment being under consideration by your employer please contact NZNO for advice or support on 0800 28 38 48.

COVID-19 Public Health Response (Vaccinations) Order 2021

On 23 January 2022, the Government updated the COVID-19 Public Health Response (Vaccinations) Order to require people working in a variety of settings to receive booster doses of a COVID-19 vaccine (i.e. three doses in total for most people).

The following groups of NZNO members are covered by the Order:

  • Members working in managed isolation and quarantine facilities (MIQ), 
  • Members working in the health and disability sector, 
  • Members working in prisons, 
  • Members working at the border (e.g. ports and airports), 
  • Members working in the education sector (e.g. schools). 

Members working in MIQ, in the health and disability sector or at the border must receive their booster dose before the later of either:

  • 25 February 2022, or,
  • The date 183 days after the date on which they were fully vaccinated (for most people, when they received their second dose). 

Members working in prisons and the education sector must receive their booster dose before the later of either 

  • 1 March 2022, or,
  • The date 183 days after the date on which they were fully vaccinated (for most people, when they received their second dose). 

All NZNO members covered by the Order should have been fully vaccinated (two doses for most people) by 1 January 2022. 

NZNO supports the Government's policy of requiring health care workers to be vaccinated. Most health care workers are already vaccinated, and this Order provides reassurance and certainty to both health care workers and the public accessing health care services. 

The safety and wellbeing of health care workers is the key to overcoming the Covid-19 crisis and high levels of community vaccination help keep NZNO members safe. 

For clarity, a mandatory vaccination order simply means the Government has decided that Covid-19 vaccination is essential for people filling the affected roles. It does not mean that anyone is forced to get a vaccine.  

It is NZNO's view that members who are covered by the Order and decline the vaccine are potentially putting their jobs at risk. Being vaccinated has become a legal expectation of health care workers. Based on recent case law, NZNO does not see a wide range of options for members who choose not to be vaccinated for reasons other than any legal exemption.

What are my rights under the NZ Bill of Rights Act 1990?

This Act sets out some rights we all have. Section 11 of the Act states everyone has the right to refuse to undergo medical treatment.  A Covid-19 vaccine is a medical treatment.  

The right to refuse medical treatment, at its most literal, means you cannot be treated against your will. That is, you cannot be forcibly vaccinated. It does not mean that you could never be moved to another area of work or dismissed, in certain circumstances, if you decline to be vaccinated.  

In addition, section 5 of the NZ Bill of Rights Act says that the rights in the Act must be upheld, except when they are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”  

That means that the government can make laws that conflict with rights in the NZ Bill of Rights Act (NZBORA). 

The border worker vaccinations Order, that means that only vaccinated workers can undertake certain roles since 30 April 2021, has  been considered by the High Court  to test whether it is an example of such “reasonable limits” under s 5 of the Act.  On 20 September 2021, Justice Churchman considered a challenge to the COVID_19 Public Health Response (Vaccinations) Order 2021 that affected only border workers as at that date (GF v Minister of COVID-19 Response, Associate Minister of Health and Attorney General [2021] NZHC 2526). GF challenged the Order and said that it was unlawful on the basis that it did not meet the conditions required under section 9 of the Public Health Response Act 2020 and that the Order was irrational, and therefore unlawful, principally because of the consequences it has for unvaccinated employees. GF also said that the Order unreasonably infringed on her rights. 

In upholding the legality of the Order and concluding “to the extent that requiring affected workers to be vaccinated before carrying our certain duties might amount to discrimination, the benefits of that requirement outweigh any discrimination and that limitation is proportional and demonstrably justified” Justice Churchman decided that: 

  • the Order was made within the parameters of the Public Health Response Act 2020; 
  • the Pfizer vaccine was not experimental; 
  • the Minister took into account that there was a sufficient public “health rationale for making the Order, and that the reduction in risk achieved by the Order was material and could not be achieved in any other less rights-intrusive way, and that the Order would be justified from a NZBORA perspective.”; 
  • in balancing “the benefit of the vaccine and the risk of being unvaccinated against any discrimination in relation to those affected” the Court stated that “if the benefits outweigh the potential discrimination, the limitation is proportionate and demonstrably justified under s 5 of the NZBORA.”  

NZNO considers that it is highly likely that if the Order mandating vaccination for the health workforce is judicially reviewed the High Court would reach the same conclusion.