8.4 What happened: Vaccination requirement­s I aha: Ngā whakaritenga rongoā āraimate

Many countries began to introduce vaccine requirements for certain workforces as part of their COVID-19 responses during 2021. For example, the Italian government made it mandatory for healthcare workers to be vaccinated from April 2021, while Australia introduced a vaccine mandate for residential aged care workers in September 2021.

In Aotearoa New Zealand, the term ‘vaccine mandate’ was mostly used to describe this same type of occupational mandate, specifically government orders that required people working in certain professions (such as education and healthcare workers) to be vaccinated against COVID-19 if they wanted to continue working in those roles.⁷⁶ Several Government-issued occupational vaccine mandates were introduced in New Zealand between May and November 2021, using order-making powers under the COVID-19 Public Health Response Act 2020.

As well as mandating COVID-19 vaccination for certain occupations, the Government also introduced a Vaccination Assessment Tool to assist employers with the health and safety assessments required to introduce their own workplace vaccination policies. While not set by central government, these policies operated as de facto vaccine ‘mandates’ within certain workplaces or sectors. Finally, in December 2021, Aotearoa New Zealand introduced a series of more stringent restrictions for people who were not vaccinated against COVID-19. These included additional masking and physical distancing requirements, and stricter limits for gatherings with unvaccinated people.⁷⁷ Such restrictions were able to be implemented and enforced by the introduction of government-issued COVID-19 vaccination certificates, commonly referred to as ‘vaccine passes’.⁷⁸ These were in place from late 2021 until April 2022.

The term ‘vaccine mandate’ was commonly used to describe workplace-specific vaccination policies and vaccine pass requirements, as well as the Government-issued occupational mandates. For ease of reference, when we use the term ‘vaccine mandates’ in this section, we are referring mainly to Government-issued occupational mandates (and we try to make this clear in the text of this report). We refer separately to ‘workplace-specific policies’ and ‘vaccine passes’, and when a catch-all term is helpful, we use ‘vaccine requirements’.

Many countries introduced vaccine mandates for certain workforces as part of their COVID-19 response.

8.4.1 The case for requiring vaccination

Much of the rest of this section documents what vaccine requirements were introduced, and when, as part of the COVID-19 response. It is also important to understand why such requirements were considered necessary, if we are to draw lessons for future pandemics. We begin, therefore, by setting out what we understand to have been the overarching rationale for introducing various vaccine requirements, based on the evidence available to our Inquiry.

Decisions about vaccine requirements involved complex trade-offs. Decision-makers were aware of the need to protect vulnerable population groups from the virus, but were also under pressure in late 2021 to reduce reliance on stringent public health measures after the long regional lockdown in Auckland. They needed to balance the public health benefits of higher vaccination coverage, the social and economic imperative to return to something like ‘normal’ life, and the importance of upholding people’s individual rights and medical autonomy. Cabinet decisions to issue occupational vaccination mandates, simplify the process for employers to set workplace-specific vaccine policies, and require vaccine passes for certain locations and gatherings were all attempts to strikean acceptable balance between these arguably competing imperatives.

8.4.1.1 Reducing COVID-19 transmission

Until November 2021, the rationale for making vaccination compulsory in a range of settings was usually described in terms of its potential to reduce transmission of COVID-19. This is a very significant benefit, as it means vaccination can reduce the size of outbreaks and the speed at which they spread, as well as protecting vulnerable people from infection. This rationale was evident in early advice to Cabinet from February 2021, which discussed the need to balance the anticipated benefits of requiring vaccination in certain settings against the constraint this would place on individual freedoms and human rights. The expectation that vaccinating one person would provide protection for other people (including vulnerable individuals) was an important consideration when imposing constraints on individuals that would not have been considered justifiable under ‘normal’ circumstances.

Decision-makers had to balance the benefits of vaccine mandates (such as preventing spread of infection and protecting vulnerable people) against the limitation these placed on people’s individual freedoms.

8.4.1.2 The New Zealand Bill of Rights Act and the right to refuse medical treatment

In weighing up the public and personal health benefits of making vaccination compulsory in certain settings, ministers needed to consider whether any of the rights and freedoms affirmed by the New Zealand Bill of Rights Act 1990 would be engaged. One potentially applicable provision is ‘the right to refuse to undergo any medical treatment’.⁷⁹ Another potentially applicable provision is the right to freedom from discrimination ‘on the grounds of discrimination in the Human Rights Act 1993.’ Importantly, however, the New Zealand Bill of Rights Act also recognises that the rights and freedoms it affirms may be subject ‘to such reasonable limits […] as can be demonstrably justified in a free and democratic society.’⁸⁰ Ministers therefore needed to consider whether any interference with fundamental rights and freedoms was ‘demonstrably justified’ despite the elementary principles of freedom and democracy under which we normally live in Aotearoa New Zealand.

The risk of legal challenge

Decisions and actions of Government that are in breach of the New Zealand Bill of Rights Act can be subject to judicial review. Cabinet’s decisions about the use of order-making powers under the COVID-19 Public Health Response Act 2020, to introduce vaccine mandates, would have taken Bill of Rights Act compliance into consideration. The Minister would need to be satisfied that the introduction of vaccine mandates represented a justified limit on individual rights and freedoms.

Justification for infringement

Cabinet received detailed advice on the conditions that would need to be met for vaccine mandates to be justified under the New Zealand Bill of Rights Act. This advice recognised vaccination as a medical treatment and set out the basis on which the Government could be ‘demonstrably justified’ in requiring people to undergo vaccination in order to work in certain roles. The original wording of the COVID-19 Public Health Response Act 2020 linked the use of such orders with preventing the spread of COVID-19.

From the evidence we have reviewed, it seems clear that – for the introduction of most vaccine requirements – the basis on which ministers were satisfied that they were justified in limiting people’s right to refuse medical treatment was that these requirements would substantially reduce community transmission. This is evident from one briefing we have seen – concerning the extension of vaccination mandates to cover booster doses on 22 December 2021 – in which health officials gave the following advice:

“Vaccination plainly constitutes medical treatment and therefore engages the right of every person to refuse it if they choose. Compulsory vaccination of whatever sort, and by whatever means will be inconsistent with that right unless it can be demonstrably justified. The state has a legitimate interest in impeding community transmission of the virus. If the Minister of COVID-19 Response is satisfied on the basis of credible evidence that compulsory vaccination of affected workers will have that effect or make a substantial contribution to it that cannot be otherwise achieved, it will be justified.”

8.4.1.3 The importance of emerging evidence

Early advice to ministers on the use of vaccine requirements acknowledged that scientific evidence about the effectiveness of COVID-19 vaccination would continue to evolve. Officials advised ministers that they would need to monitor evidence on the effectiveness of vaccines at preventing COVID-19 transmission when considering the ongoing appropriateness of requiring vaccination in certain settings:

“The Ministry of Health will continue to monitor emerging evidence on the effectiveness of COVID-19 vaccines at preventing transmission to ensure that any options appropriately respond to the most recent scientific evidence. Up to date scientific evidence will provide a good foundation for any changes in approach to the public.”

The implication was that policies might change in response to ‘emerging evidence’, and that health officials would proactively update advice on the use of vaccination mandates and requirements in response to such evidence.

8.4.1.4 Te Tiriti | Treaty of Waitangi and equity considerations

The same early advice noted that mandatory vaccination might undermine the Crown’s obligations in relation to te Tiriti, with respect to both self-determination and equity of treatment, noting:

“if a decision to mandate vaccination was not made in partnership with Māori this would mean that Māori would not be supported to self-determine whether to undergo this medical treatment, which is likely contrary to the Te Tiriti principle of Tino rangatiratanga (which in a health context, provides for Māori self-determination and mana motuhake in the design, delivery and monitoring of health services).”

The advice also noted that Māori (and Pacific peoples) would be ‘more likely to be adversely impacted by compliance measures, such as redeployment and dismissal’ given their greater likelihood of not receiving a COVID-19 vaccine – reflecting higher rates of underlying health conditions (which might preclude vaccination) and their historically lower vaccination coverage.

Later, the potential for disproportionate impacts on Māori was specifically acknowledged in advice on use of vaccine pass requirements (where people were required to show evidence of vaccination to access certain venues and events). A Ministerial briefing described Māori as having ‘higher levels of structural disadvantage’, noting:

“… there are ongoing and increased concerns and anxieties among some Māori and other population groups around surveillance and low trust in government agencies… This is why transparent and outward facing engagement is likely to be critical to successful adoption of [vaccine passes].”⁸¹

8.4.2 Occupational vaccine mandates

8.4.2.1 Early mandates for specific workers

Border workers were the first group for whom vaccination was made a requirement of their employment. These workers had been prioritised for vaccination since February 2021 due to their role on the ‘front line’. At that time, officials presented Cabinet with a range of options for encouraging border workers to get vaccinated, ranging from paid time off to attend vaccination to directly issuing vaccine mandates.⁸² At that early stage, encouragement was preferred over compulsion, but Cabinet requested further advice on legislative or regulatory levers that might be needed if a mandatory approach was favoured in future.

Even at that early stage, it is clear that officials and ministers were aware of the potential for mandatory vaccination to have unintended impacts, including a potential loss of trust among some members of the public:

“Mandating vaccination for particular workforces will likely have flow on impacts on the perception of the COVID-19 Immunisation Programme and may have unintended consequences, such as reducing trust in the Programme among some groups…”

“The precedent impacts of a decision to make vaccination mandatory for specific workforces is most likely to have an impact on the health workforces and other frontline public sector workforces in the future.”

Section 11 of the COVID-19 Public Health Response Act 2020 contained a broad power allowing the relevant minister to issue orders that could ‘require persons to take any specified actions, or comply with any specified measures, that contribute or are likely to contribute to preventing the risk of the outbreak or spread of COVID-19’.⁸³ This was the mechanism by which the Government issued occupational vaccine mandates.

The COVID-19 Public Health Response (Vaccinations) Order 2021 came into force in May 2021, stipulating that specified high-risk roles should be undertaken only by vaccinated individuals.⁸⁴ From May 2021, it applied to a small group of border workers; from July, it was extended to most maritime and aviation workers.⁸⁵ The order also applied to Police and Defence staff working in border or quarantine settings.

According to the Ministry of Health, the rationale for these early mandates was to reduce the risk of COVID-19 entering Aotearoa New Zealand through the border. The expectation was that vaccination would reduce the chance of border workers and their families catching the virus and in turn passing it onto others.⁸⁶

8.4.2.2 Widening of mandates to health, disability, education and prison workers

The emergence of the Delta variant precipitated a widening of occupational vaccine mandates to include health, disability, education and prison workers. This was intended to reduce the risk of COVID-19 transmission, particularly to vulnerable groups, as reflected in a 2022 letter from the Strategic COVID-19 Public Health Advisory Group to the Associate Minister of Health:

“The main purpose of these mandates has been to reduce the risk of workers becoming infected and transmitting the virus to groups of people who may be either unable to be vaccinated themselves (e.g. young children), particularly vulnerable to infection (e.g. sick patients or residents in aged care), or at risk of large outbreaks (e.g. inmates in prisons)’.”⁸⁷

By August 2021, most health workers had already been vaccinated, but some had not. The emergence of the Delta variant, which began to circulate in Auckland that month, refocused attention on the potential for the healthcare system to be overwhelmed. Health workers were at greater risk of being infected and of passing COVID-19 on to patients. There were also potential system capacity implications if health workers had to isolate in large numbers. The Minister of Health directed the Ministry to start working on extending the vaccination order to certain groups of health workers.

In October 2021, Cabinet duly agreed to extend the vaccination order to workers in the health and disability sector. (The order also applied to Police and emergency services staff working as or alongside health staff.) Cabinet also agreed to apply the order to aged care workers, prison staff, and teachers and other education workers.⁸⁸ The Ministry of Business, Innovation and Employment estimated that Government-issued vaccine mandates for workers in border, health, education and correctional settings would cover roughly 15 percent of the country’s total workforce.⁸⁹

Again, the rationale for extending the order to these other sectors appears to have been to prevent the spread of infection. A Cabinet briefing from the time emphasises the importance of vaccination in the prevention of COVID-19 transmission – particularly in ‘high-risk settings’ such as prisons:

“Mandating vaccination for work that takes place in prisons is an important step to protect the health of workers and people in prison. People in prison are some of the most vulnerable to COVID-19, due to the ease of transmission that COVID-19 can have in prisons, and the existing health vulnerabilities of the prison population.”⁹⁰

We have not seen direct evidence on the specific rationale for applying vaccination orders to teachers and other education workers. However, a subsequent High Court ruling (in response to a legal challenge to the mandates) described the purpose of these mandates as preventing schools from becoming a source of community transmission that might pose a risk to vulnerable people (including parents and grandparents of students).⁹¹ We also heard from education stakeholders we engaged with directly that schools wanted stronger guidance from government on whether staff should be required to be vaccinated, and how to keep teachers employed.

Affected workers who were likely to have contact with children were required to have their first vaccine by 15 November 2021 and be fully vaccinated (i.e. two doses) by 1 January 2022. Subsequent decisions and orders in late 2021 and early 2022 extended the requirement for MIQ, border and health workforces to include booster doses within six months of their second primary dose.

It was possible for workers to obtain a medical exemption from the vaccine requirement, but access to these was highly restricted. Those who were eligible included people already infected with COVID-19, people who had had a serious adverse reaction requiring hospitalisation (such as anaphylaxis and myocarditis) to a previous dose, and people with pre-existing heart conditions or who had experienced inflammatory cardiac illness in the previous six months. Otherwise, it was expected that most people could be safely vaccinated, although some might require extra precautions.⁹²

While exemption certificates could initially be issued by any registered medical practitioner, there were concerns that exemptions were being granted in situations where they were not warranted on clinical grounds. From November 2021, such exemptions were issued centrally under the authority of the Director-General of Health.⁹³

The decision to apply vaccine mandates to health and education workers occurred at a difficult period in the pandemic response when there was ‘confusion [… over the] ambiguity of what New Zealand’s overall COVID-19 strategy is’.⁹⁴ Ministers were aware of ‘mixed reactions’ to the mandate announcement, with some people reassured by their introduction – and the prospect of further vaccination requirements – while others saw their introduction as a breach of trust:

“Some people expressed happiness and a desire for the mandate to be expanded to other sectors, with others perceiving the decision as a backtrack on Government’s word not to mandate vaccinations in New Zealand. At the same time, others are discussing vaccination [passes], with some noting that they booked their vaccination in anticipation of their introduction.”⁹⁵

8.4.2.3 Broadening the potential basis for future mandates

As set out in section 8.4.2.1, the original wording of the COVID-19 Public Health Response Act 2020 allowed ministers to make orders requiring people to comply with specific measures, if these would contribute (or be likely to contribute) to preventing the spread of COVID-19. That is, premised on vaccines reducing the risk of between-person transmission, and not premised on vaccines protecting against serious illness. This was the basis on which the earlier Government-issued occupational mandates were set.

In October 2021, Cabinet agreed to amend the COVID-19 Public Health Response Act 2020 to expand the basis on which workers could be required to undergo vaccination.⁹⁶ The changes allowed Government to introduce vaccine mandates (via Section 11AA and Section 11AB orders) on ‘public interest’ grounds. Public interest was defined as ‘ensuring continuity of services that are essential for public safety […] supporting the continued provision of lifeline utilities and other essential services: maintaining trust in public services: [and] maintaining access to overseas markets’.⁹⁷ These changes came into force on 25 November 2021,⁹⁸ having been passed under urgency and without referral to a Select Committee.

Cabinet papers recommending these changes noted that several government agencies wanted to ensure ‘key public services and essential services should only be delivered by vaccinated workers’ and made the case that mandatory vaccination would help ensure continuity of essential services, critical national infrastructure, and access to overseas markets.⁹⁹ The changes were recommended to:

“enable Government to mandate vaccination for these categories of work in future, particularly if public interest arguments are stronger than public health reasons for requiring vaccination.”¹⁰⁰

This shift in the grounds for requiring vaccination is subtle but important. It meant that the Government could require vaccination on the grounds that it would help prevent workers in essential services from becoming sick (whereas before they could only require vaccination on the grounds that it would help limit transmission of COVID-19). This might be helpful if it substantially increased vaccination rates among essential workers, notably reducing the number of staff sick and off work due to sickness from the pandemic pathogen and compromising the delivery of key public and essential services.

Government powers to issue orders on public interest grounds were eventually repealed on 26 November 2022.¹⁰¹

8.4.2.4 Inclusion of paid and volunteer firefighters

According to the Ministry of Health, Fire and Emergency New Zealand considered their frontline to be covered by the vaccine mandates for health workers since they were frequently in direct contact with patients and other health staff (as firefighters are often involved as first responders in emergency situations).¹⁰²

This took some time to confirm, meaning there was a delay between vaccine mandates for health workers being announced, and firefighters (both paid staff and volunteers) being informed that it applied to them. The Vaccination Order therefore was amended on 12 November 2021 to extend the dates which by which firefighting personnel had to comply. Firefighters were required to have their second vaccination by 14 January 2022 in order to continue in their roles.¹⁰³

8.4.2.5 New mandates for Police and Defence Force staff

As noted previously, many Defence Force staff were covered by mandates requiring vaccination of staff working in border settings; while many Police were covered by mandates for staff in border, health and education settings. Occupational mandates covering remaining Police and Defence Force staff were issued on 16 December 2021.¹⁰⁴ A month before, Cabinet had agreed to apply vaccine mandates to these roles in line with the expanded ‘public interest’ grounds introduced via changes to the COVID-19 Public Health Response Act 2020.¹⁰⁵ The case was made that mandatory vaccination would ensure continuity of the ‘essential services’ provided by these workforces in relation to public safety, national defence and crisis response.

8.4.2.6 Removal of occupational vaccine mandates

Most government-ordered COVID-19 vaccination mandates were in place for between six and 12 months in 2021 and 2022.^viii Ministers requested periodic reviews of the advisability of continuing vaccine mandates during this time, and officials and expert groups provided advice in response to these requests.¹⁰⁶

In March 2022, the Strategic COVID-19 Public Health Advisory Group told the Associate Minister of Health that the case for retaining occupational vaccine mandates was now:

“more finely balanced, because of our relatively high vaccination coverage and increasing natural immunity, as well as the apparent lowering of vaccine effectiveness against transmission of the Omicron variant.”¹⁰⁷

The Government-issued vaccine mandates for workers in education, Police and the Defence Force were accordingly revoked in April 2022. However, other occupational mandates remained in place beyond this time. Advice to Cabinet suggests there was a particular desire to maintain vaccine mandates for workers who were in contact with vulnerable people (including people in healthcare settings, aged care residents and those in prison facilities), and for border workers who were at risk of exposure to new COVID-19 variants.¹⁰⁸

The remaining occupational vaccine mandates were removed progressively from July (border workers, workers in prisons, and Fire and Emergency staff) to September 2022 (workers in health, disability and aged care settings) in accordance with advice from officials.¹⁰⁹

We return to how the Omicron variant changed the case for vaccine requirements in Aotearoa New Zealand in section 8.4.5.

8.4.3 Workplace-specific vaccination requirements

8.4.3.1 Expectations around workplace vaccination policies

Once vaccines were readily available in Aotearoa New Zealand, some businesses and unions sought clarity over the circumstances in which workplaces could – or should – require staff to be vaccinated.¹¹⁰ In April 2021, the Institute of Directors published an article by MinterEllisonRuddWatts which showed the situation was complicated. From an employment law perspective:

“Whether an employer could lawfully compel an existing employee to be vaccinated (or redeploy them or take disciplinary action if they refuse) does not have a clear-cut answer.”¹¹¹

The advice noted that in most situations, it would not be permissible to introduce a workplace vaccination requirement under existing legislation (‘because it would amount to the employer unlawfully imposing a new employment condition without the employee’s agreement’). However, the Health and Safety at Work Act 2015 created an obligation for an employer or business ‘to ensure as far as reasonably practicable the health and safety of its workers’. In the context of COVID-19, the article advised that this obligation required employers or business owners to carry out ‘a careful risk assessment and [ensure that] reasonable safeguards are in place to reduce the risk of exposure to COVID-19’. In certain circumstances, as a result of this assessment, the employer could require that a specific role had to be undertaken by a vaccinated person.¹¹²

8.4.3.2 Enabling workplace COVID-19 vaccination policies

The issue of workplace vaccination requirements became more salient in late 2021 as the country began transitioning away from the elimination strategy and it became inevitable that COVID-19 would start to circulate in the general population. This was quite a challenging idea for many people, having just spent almost two years successfully keeping COVID-19 out of the country. Against this backdrop, many employers, workers and members of the public were concerned about potential exposure to COVID-19 in the workplace and in wider social life.

Workplace-specific vaccine requirements offered one option for employers to assuage some of these fears. Employers already had the ability under employment law to terminate an employee’s employment (following a procedurally fair process) where that employee failed to comply with a vaccination requirement.¹¹³ But many employers were concerned that they might be exposed to legal challenge if they attempted to require staff to be vaccinated under existing regulations.¹¹⁴ The workplace health and safety regulator, WorkSafe, told us there were ‘high levels’ of community expectation in late 2021 and early 2022 that employers would set workplace-specific vaccination requirements and that WorkSafe – with the Health and Safety at Work Act 2015 as a ‘backstop’ – would enforce them.

In October 2021, the Minister responsible for the Ministry of Business, Innovation and Employment proposed changes to existing legislation to support the introduction of broader vaccination requirements in the workplace.¹¹⁵ Advice to Cabinet emphasised the need to ‘provide a much greater degree of certainty and support to employers’ who were struggling to determine whether they had grounds to introduce vaccine requirements for their staff, and cited ‘widespread and persistent calls from employers, sector groups and unions for greater clarity’ on workplace vaccination requirements.¹¹⁶

In response to these concerns, the Government introduced a regulatory framework (aligned with the Health and Safety at Work Act 2015) that simplified the process for employers and business owners to assess the risk of COVID-19 in the workplace and require workers to be vaccinated to continue working there.¹¹⁷ The Act also amended the Employment Relations Act 2000 to provide those employees who were terminated in these circumstances with a minimum of four weeks’ paid notice.¹¹⁸ In line with the Minister’s proposal, WorkSafe was empowered and funded to both support businesses with these activities, and enforce any resulting requirements. The changes were supported by the Council of Trade Unions and Business NZ.¹¹⁹

The new regulatory framework was introduced in late November via the COVID-19 Response (Vaccinations) Legislation Act 2021, which also amended the COVID-19 Public Health Response Act 2020 to broaden the range of reasons for which the Government could issue occupational vaccine mandates (see section 8.4.2.3).¹²⁰ The new Vaccination Assessment Tool was introduced on 15 December 2021.¹²¹ This significantly simplified the process by which employers could introduce a requirement for workers to be vaccinated in line with the Health and Safety at Work Act 2015.

The Vaccination Assessment Tool simplified the process for employers to require workers to be vaccinated.

8.4.3.3 Demand for and uptake of work-related vaccination requirements

The new regulatory arrangements achieved what was perhaps their main purpose: making it easier to ensure that workers in settings where members of the public were required to show a pass for entry would also be vaccinated themselves.¹²² The Ministry of Business, Innovation and Employment estimated that this would represent around 25 percent of the country’s workforce.¹²³

The regulatory changes simplified the health and safety risk assessment that employers were required to undertake to make vaccination a requirement for their staff. We do not have information on how many employers set such policies for their workers. But based on accounts from the businesses and employers we engaged with directly, and evidence that there was strong demand for such policies, it appears some business and other organisations did take up the option to set such policies.

Many public sector agencies placed a strong emphasis on vaccination. In November 2021 the Public Service Commission issued guidance to agencies (including Crown entities and a variety of other Crown organisations) noting ‘an expectation that all employees in the public service should be vaccinated’. Agencies with ‘at-risk workforces’ were encouraged to ‘consider introducing a requirement for new employees to be vaccinated into employment agreements’.¹²⁴ While many agencies followed suit, others resisted or sought to delay finalising requirements.

8.4.3.4 Removal of workplace-specific vaccine requirements

In April 2022, WorkSafe issued updated guidance for employers regarding risk assessments in relation to COVID-19 transmission in their workplaces.¹²⁵ This guidance noted that setting vaccination requirements might be justified for health and safety purposes but that such requirements ‘should be used carefully and are not a suitable first response for managing COVID-19 in most workplaces’. WorkSafe’s senior leaders told us that the organisation now sees vaccination primarily as a public health issue rather than a workplace safety issue.

Regulations allowing employers to introduce workplace vaccination policies based on the Vaccination Assessment Tool were revoked in May 2022.¹²⁶ Advice to the Cabinet Legislation Committee noted that ‘the risks of contracting and transmitting COVID-19 have materially shifted… [and] the factors in the [Vaccination Assessment] Tool are no longer an appropriate reflection of the current public health advice’.¹²⁷ Public health advice was cited as stating that ‘vaccination requirements may continue to be appropriate in some circumstances’ but that such requirements should be ‘specific to roles and the organisation’s circumstances’.¹²⁸ The paper noted that employers could continue to require staff to be vaccinated but would ‘now need to undertake a full work health and safety risk assessment to determine whether this is an appropriate COVID-19 control for their circumstances’.¹²⁹ In other words, the expedited process offered via the Vaccination Assessment Tool was no longer in place.

8.4.4 Vaccine passes

The population-wide vaccination rollout was well underway by the time Government-issued occupational vaccine mandates were being developed and announced. Once vaccination had been offered to everyone aged 65 and over, it was made available to the wider population (in descending age cohorts) from August and September 2021. Various initiatives were undertaken to encourage uptake, such as a ‘National Day of Action’ (including several mass vaccination events and a ‘Vaxathon’ broadcast) on 16 October 2021 (see Chapter 6 for more on the vaccine rollout).

8.4.4.1 Initial policy work on vaccine passes

By August 2021, a growing number of countries were investigating or implementing COVID-19 vaccination certificates (also known as vaccine passes) to support international travel, restrict access in domestic settings, or both. Around this time, Ministry of Health officials started work on a digital certificate for people vaccinated in Aotearoa New Zealand, primarily to support international travel. Relevant ministers were kept informed.

In September 2021, policy work on COVID-19 vaccination certificates was extended to include the possible domestic use of certificates to make vaccination a condition of entry for certain settings.¹³⁰ Advice from the Ministry of Health and Department of the Prime Minister and Cabinet appeared to focus on their potential role in reducing the risk of COVID-19 transmission, but other benefits were also suggested.¹³¹ While vaccination rates were not yet optimal, the rationale given for vaccine passes was that:

“requiring proof of vaccination using a certificate for large high-risk events would support the public health response to COVID-19 by reducing the risk of super spreader events and potentially encouraging those not yet vaccinated to get vaccinated.”¹³²

Officials recommended the ‘targeted application of vaccine certificates to high-risk events and venues’ as providing the ‘best balance of risk mitigation, public acceptability, and feasibility to implement’.¹³³ It was proposed that vaccine certificates should be required at ‘large high-risk events’ such as music festivals and concerts.¹³⁴ Officials also recommended prohibiting the use of vaccination certificates for other types of venues – including essential businesses and life-preserving services, schools and community facilities – so as to ensure unvaccinated people could retain access to essential services.¹³⁵

Ministers were aware of the risk to social licence and cohesion from the use of vaccine passes

In developing advice for senior ministers, the Department of the Prime Minister and Cabinet had undertaken consultation with a range of other agencies.¹³⁶ In response, several government agencies raised concern about the potential risks associated with domestic use of vaccine certificates (or ‘passes’). Some agencies noted the potential for such a system to cause unintended harms – including further marginalisation of some groups, adverse impacts on vaccine uptake, and erosion of social cohesion.

On 16 September 2021, in feedback on the inter-agency consultation, Treasury officials questioned the rationale for introducing a vaccine pass system if vaccine coverage was already high, noting that – in this case – the public health benefits would be smaller and likely outweighed by the costs.¹³⁷

Advice to senior ministers emphasised several of these concerns – including potential impacts on equity, social licence and cohesion, and the risk that vaccine pass requirements were inconsistent with the Crown’s obligations to uphold self-determination, partnership and equity for Māori.¹³⁸ The paper noted that targeting vaccination pass requirements at high risk events could ‘provide sufficient public health benefits while balancing human rights, equity, social licence and cohesion and operational considerations’.¹³⁹ In September 2021, ministers were advised that:

“…the introduction of [vaccine certificates] will have an impact on social cohesion that will need mitigation... There is also a risk that restrictions on where unvaccinated people may go could negatively impact the trust that has been built around the COVID19 vaccination rollout and to address vaccine hesitancy that is linked to a wider mistrust of the health system.”¹⁴⁰

An appendix to this paper noted that the introduction of vaccine pass systems in other countries (including Canada, France and Finland) had been associated with public protests, although they were also credited with helping to increase vaccination rates in France.¹⁴¹

Subsequent work focused on the use of vaccine pass requirements in ‘high-risk’ settings – where people would be in close proximity to one another – on the basis that this provided an appropriate balance between public health benefit and risks around equity, social division and compliance.¹⁴² Officials identified the need to continue weighing the potential benefits of vaccine requirements against the potential damage they could cause to social licence, noting that:

“The more that vaccination is seen as mandatory, for example by requiring [vaccine passes] for access to a wide range of venues (even if considered high risk by public health officials) the greater the risk of loss of social license for vaccination overall.”¹⁴³

These issues were much less prominent in the initial advice that went to Cabinet on vaccine passes.¹⁴⁴ This advice considered the vaccine pass system as part of the new COVID-19 Protection Framework and envisaged their use in fairly limited settings (such as gatherings of 500 or more people at the lowest setting, entry to cafes and restaurants at the highest setting). Cabinet was advised that vaccine pass requirements ‘could exacerbate existing inequities in the coverage of vaccination among different groups’ – particularly Māori and Pacific peoples.

At the point Cabinet was asked to approve their implementation (in late October 2021), the proposed use of vaccine pass requirements had been expanded to a much broader range of settings (gatherings of 100 people or more at the lowest settings, and entry to cafes and restaurants at any other setting).¹⁴⁵ Cabinet was advised that the introduction of these requirements was ‘likely’ to have an impact on social cohesion since:

“… those without [vaccine passes] will potentially be excluded from a much wider range of social settings. This risks isolating the unvaccinated and increases the likelihood that we will see large-scale protests similar to those experienced in other countries that have introduced vaccine requirements.”

“There is also a risk that restrictions on where unvaccinated people may go could negatively impact the trust that has been built around the COVID-19 vaccination rollout and to address vaccine hesitancy that is linked to a wider mistrust of the health system. Targeted funding, programmes, communication and education could be important in mitigating this risk…”¹⁴⁶

The paper also acknowledged that vaccine pass requirements could exacerbate lower vaccination levels for Māori, noting the risk that they ‘could negatively impact the trust that has been built for the COVID-19 vaccination rollout and could enhance vaccine hesitancy’.¹⁴⁷ It noted that a communication strategy could help reduce this risk.

Note that the above advice to Cabinet preceded any knowledge of Omicron, and in particular preceded the realisation in late 2021 and early 2022 that vaccines offered poor protection against getting infected by Omicron; the policy was made with Delta in mind.

8.4.4.2 Vaccine pass requirements under the ‘traffic light’ system

Domestic use of vaccine passes was introduced as part of the new COVID-19 Protection Framework. This followed the Prime Minister’s announcement on 4 October 2021 that the country would move out of the elimination strategy. The Delta outbreak was in full swing, Auckland’s lockdown had not been successful at eliminating community transmission, and officials were working at speed to devise new settings that could allow Aucklanders to come out of lockdown while continuing to protect public health as much as possible.

In this context, the Government decided to move ahead with the domestic use of vaccine passes. People would be required to have proof-of-vaccination when entering settings in which they would be in close proximity to others and where face coverings and social distancing might be impractical or difficult to enforce.¹⁴⁸ The specific rationale for this requirement (as outlined by officials) was ‘to reduce the risk of super-spreader events, at least until vaccination rates are well over 90 percent across all (eligible) age and ethnic groups)’.¹⁴⁹ That is, the rationale was based on the vaccine’s ability to reduce transmission – which it did reasonably well for Delta. In a briefing to Cabinet on the introduction of this requirement, the Minister for COVID-19 Response described it as:

“a tool to help support the broader public health response to COVID-19… and an additional measure to ensure people in certain settings can demonstrate that they are either fully vaccinated, or medically exempt from vaccination.”¹⁵⁰

Vaccine passes were introduced as part of the new COVID-19 Protection Framework (or ‘traffic light’ system) on 3 December 2021.¹⁵¹ In this context, vaccine pass requirements were seen as part of a suite of public health measures that would help contain COVID-19 transmission without resorting to lockdowns.¹⁵² This might have been a plausible expectation pre-Omicron: in early December, the world was only just becoming aware of Omicron (the first global cases were reported in South Africa on 24 November 2021)¹⁵³ and knowledge about its notable escape from vaccine protection against infection was nascent at best. Exemptions from vaccine passes were made only on medical grounds, and to children under 12 years and 3 months of age.

The introduction of vaccine passes as part of the ‘traffic light’ system created what was effectively a dual system, under which people who did not have a pass were subject to stricter limitations than those who had one (or an exemption). Specific restrictions varied by both traffic light level, and vaccination status, as summarised in Figure 1.¹⁵⁴

Figure 1: Restrictions based on traffic light settings and vaccination status

Traffic Light Setting	With vaccination pass	Without vaccination pass
Green	No gathering limits or mask mandates (except on flights)	Gathering limits of 100, mandatory face coverings and physical distancing in close contact settings
Orange	No gathering limits	Gathering limits of 50 at private gatherings; not able to attend close contact businesses, events or gyms
Red	Gathering limits of 100 and physical distancing in most settings outside the home	Gathering limits of 25 at private gatherings; not able to attend close contact businesses, events or gyms

Source: Adapted from Department of the Prime Minister and Cabinet, 2021, COVID-19: Implementing the COVID-19 Protection Framework [CAB-21-MIN-0497], https://www.dpmc.govt.nz/sites/default/files/2023-01/COVID-19-Implementing-the-COVID-19-Protection-Framework.pdf

‘My Vaccine Pass’

To support these dual requirements, the Government needed a practical system by which people could easily identify who had been vaccinated (or had a medical exemption). Vaccination certificates – formally known as ‘My Vaccine Pass’ or just the ‘vaccine pass’ – were issued by the Ministry of Health in a digital format that people could download and display on their phones (non-digital options were also available). My Vaccine Pass was rolled out during the first week of the transition to the traffic light system. By 9 December 2021, the Ministry of Health had issued more than four million passes (representing about 90 percent of people who had been double vaccinated by that point) and just under 100,000 temporary exemptions.

The ‘traffic light’ system remained in place until 12 September 2022, but the vaccine pass system was retired on 4 April 2022.¹⁵⁵

8.4.5 Changing evidence and its impact on the case for vaccine requirements

As discussed in section 8.4.1 above, the original case for introducing vaccine mandates was based on their ability to reduce COVID-19 transmission and thus confer broader protection.

Officials sought to keep updated on the effectiveness of COVID-19 vaccines and to reflect this information in their advice to decision-makers. International evidence on vaccine effectiveness was continually evolving, complicated by the emergence of new variants. Given the evolving nature of this evidence, it is difficult to pinpoint exactly what information officials were aware of, and when this information was presented to decision-makers.

By September 2021 officials were aware that vaccine-induced protection against COVID-19 infection – and thus transmission – declined over time (in other words, waning immunity). In a September 2021 memo, the COVID-19 Vaccine Technical Advisory Group noted that the Pfizer vaccine was less effective in preventing COVID-19 transmission than in protecting people from severe disease or hospitalisation.¹⁵⁶ On 10 November 2021, the group noted that vaccine-induced protection from infection waned over time, ‘particularly from 6 months after a primary vaccination course’, referencing studies from the United States, Israel and Qatar.¹⁵⁷ They recommended the introduction of a third ‘booster’ vaccine dose 6 months following the primary vaccination course.

This evidence was referenced in a 22 December 2021 briefing recommending that border and healthcare workers receive a third ‘booster’ vaccine dose four months following their initial vaccine course. Officials noted that:

“Current evidence… indicates the antibody levels against COVID-19 wane over time following a second dose of the Pfizer COVID-19 vaccine. There is a reduction in protection against infection from the Delta variant, particularly from six months after a primary vaccination course.”

The potential for vaccines to reduce COVID-19 transmission was substantially reduced once Omicron became the dominant variant in Aotearoa New Zealand. Community transmission of Omicron was first detected in January 2022. By February, Omicron was sweeping through the population and causing hundreds and then thousands of new COVID-19 infections every day (as shown in Chapter 1).

There was growing international evidence that vaccination was less effective in preventing transmission of Omicron compared with previous variants. In December 2021, a preprint^ix version of a United Kingdom study reported that – following two doses of the Pfizer vaccine – protection against infection from Omicron fell from 88 percent in the first few weeks to around 35 percent at 15 weeks post vaccination.¹⁵⁸ This was around half the level of protection observed for Delta. The full version of this study (published in the New England Journal of Medicine in early March 2022) gave even lower figures, with protection from infection dropping from 66 percent at 2–4 weeks to 8.8 percent at 25 weeks following vaccination.¹⁵⁹

A Cabinet briefing from 22 January 2022 suggested officials were aware that vaccination offered lower protection against transmission of Omicron compared with Delta. The briefing summary notes that ‘vaccines show reduced effectiveness against the Omicron variant compared to Delta. This means that more vaccinated people are likely to become infected and that the number of COVID-19 cases occurring each day will be far greater than at any other time during the pandemic’.¹⁶⁰ From this point on, advice to ministers and Cabinet made frequent reference to vaccination providing reduced protection against Omicron transmission.¹⁶¹ However, protection was generally characterised as ‘reduced’ rather than minimal or absent. For example, a Cabinet paper from 16 March¹⁶² refers to evidence from the United Kingdom showing that protection against symptomatic infection was over 50 percent following two doses of the Pfizer vaccine and ‘remain[ed] above 50 percent in those that had received a booster more than 10 weeks prior’.^x

The potential for vaccines to reduce COVID-19 transmission was substantially reduced once Omicron became the dominant variant.