Legal Updates

Shopping for Medical Certificates and Vaccine Exemptions 

Recently, the government announced a new traffic light system to replace the alert level system when 90% “double jabbed” vaccine coverage is reached in each District Health Board’s geographic area.


As part of this announcement, a number of legislative changes regarding vaccine mandates were signaled. Of particular note was the proposed, vaccination certificate regime, under which vaccinated Kiwis, along with those medically unable to be vaccinated, would enjoy a wider range of freedoms than those voluntarily unvaccinated. 


The rationale for the vaccination certificate scheme is ensuring the safety of group activities and providing protections for many New Zealand workplaces that, in order to continue trading, will need to rely on the reduced transmissibility of Covid-19 provided by the vaccine.    


On 30 October 2021, Stuff reported that a group of Anti-Vaccine doctors were offering ostensibly medically-based vaccination exemptions for workers affected by the forthcoming mandatory vaccine order.  The group is named New Zealand Doctors Speaking out for Science (NZDSOS). The approach being taken by NZDSOS has the potential to make a legal and practical mockery of any vaccine certificate programme. 


Section 7A of the existing Covid-19 Public Health Response (Vaccinations) Order provides that an exemption can be provided by a suitably qualified health practitioner if, after conducting an examination, they consider the person has particular physical or other needs which make it inappropriate for the person to be vaccinated. According to the Ministry of Health, the number of people in this group is relatively limited. 


We have been asked a number of questions regarding this development, including the legitimacy of the NZDSOS medical certificates and an employer’s rights when one of these certificates is produced. Similar issues will doubtless arise for hospitality venues and event organisers, not to mention care facilities and other at risk locations.

It is imperative that vaccine certificates and exemptions are reliable and beyond reproach.


NZDSOS Medical Certificates: 


The Medical Council of New Zealand – Statement on medical certification outlines the standards a medical practitioner must follow when completing a medical certificate. This statement provides: 


“This statement outlines the standards that you must follow when completing a medical certificate. It may be used by the Health Practitioner’s Disciplinary Tribunal, the Council and the Health and Disability Commissioner as a standard by which your conduct is measured. A certificate you have completed may also be challenged in a New Zealand court and you may be called upon to justify your decisions.” 


A medical certificate is a legal document. Any statement a health practitioner certifies must be honest and made in good faith.


Medical certificates must disclose only information that is accurate and based upon clinical observation; any patient comment should be clearly distinguished from clinical observation. 


NZDSOS will be aware of the rules governing medical certificates and will need to tread very carefully. Each medical certificate issued may have implications for the patient, the Doctor issuing the certificate and the receiving entity (for example a hospitality business who receives a medical certificate exemption allowing an employee to continue working).


At this stage, provided NZDSOS comply with the above rules, medical certificates issued will meet the commonly understood criteria for medical certificates as they relate to workplace matters in New Zealand. It will be interesting to see what, if any steps the Medical Council takes regarding NZDSOS.  


Interestingly, while NZDSOS have reportedly commenced offering medical certificate vaccine exemptions, they are doing so before the rules governing medical exemptions for the proposed new framework have been drafted. As such there is a risk that any exemptions provided before the criteria are published may be invalid. More importantly, the Government has an opportunity to plug the gaps in the framework before its integrity is undermined.  


While we await the Medical Council’s response to NZDSOS and details of how the exemption regime will operate in practice, a number of questions will no doubt arise.  For example, how will exemption certificates be assessed by the Ministry of Health? Will employers be able to obtain further details regarding these exemption certificates to ensure they are complying with their obligations under the Health and Safety at Work Act 2015? 


Options for employer’s and the medical certificate exemption rules: 


In the employment context, medical certificates are addressed under section 68 of the Holidays Act 2003. Section 68 provides that an employer may require an employee to produce proof of sickness or injury for sick leave (a medical certificate) if the leave required is for 3 or more consecutive days. Where a medical certificate is sought within this time frame, an employer must meet the employee's reasonable expenses in obtaining the proof.  


Section 68(4)(a) of the Act provides that the above does not prevent an employer who is otherwise legally authorised to so require, from requiring an employee to establish that there “are no relevant health and safety reasons or hygiene reasons that would prevent the employee from working”.  Where an employee remains unvaccinated in the current Covid-19 environment, health and safety and hygiene reasons may very well prevent an employee from working, notwithstanding a medical certificate exemption.  


It may be possible for an employer, by reference to section 68(4)(a) of the Act, to require an employee who presents an exemption medical certificate from also establishing that there are no health and safety or hygiene reasons preventing them from continuing in their work: a difficult task in the current environment, particularly for close contact working environments. 

Once this point is reached, the question will become one of utilising that employee’s sick pay and considering the next steps.  The medical certificate exemption in most cases will be legitimate and can be accommodated by employers. 


Issues will arise where there are concerns regarding the medical certificate exemption for a particular employee and the health and safety of an employer’s other staff and clients. 

The issue is greater for hospitality venues, event organisers and care facilities in relation to guests and visitors; there is no existing framework for dealing with access to those spaces.


How will this be addressed? It would seem unfair to place these issues on an employer’s shoulders and hope that the employers will get these decisions right.  Likewise, referrals to the Medical Council and the Health and Disability Commissioner may also follow testing the NZDSOS exemption medical certificates, but this will take time in a period where time is a luxury Covid-19 does not allow. 


To avoid this uncertainty, the drafters of the proposed legislation can assist employers and businesses, by providing details of what these certificates must include, limits around their issue and rights to challenge their validity perhaps in conjunction with the Medical Council.  


The drafters may also wish to allow employers to require the employee’s vaccine exemption certificate to be reviewed and considered by an independent medical practitioner, following a clinical assessment of the employee.  The cost of doing so could be met by the employer, similar to the position under s 68(1A) (b) of the Act. Alternatively, a Government fund could be established for this purpose.  


As noted above, significant issues outside of the employment context may also arise.  How will business owners manage situations where members of the public show vaccine exemption medical certificates on their phones?  How will business owners be able to determine if they are legitimate and cannot be fraudulently replicated?  In what situations will a business be able to reject a vaccine medical certificate exemption?


These matters must be considered and resolved as a matter of urgency. Allowing the new regime to come into force without resolution will result in confusion, additional costs and the undermining of the purpose of the proposed changes in the first place.  One thing is clear, shopping for vaccine exemption medical certificates must be ruled out to protect the integrity of the proposed system. 


In the meantime, we encourage all employers to review their employment agreements and policies to ensure that all new employees are covered by that employer’s specific vaccine requirements as part of the recruitment and on-boarding process. 


Jaesen Sumner


Ford Sumner Lawyers


Quality advice is key

With the degree of uncertainty that still exists around workplace vaccination policies, we believe many more employers will be exposed to personal grievances from affected employees in the coming months. Employers who want expert advice on how to navigate these tricky waters and reduce the risk of costly litigation should contact JaesenRuth or Jordan.