The process of medical exemptions for mask-wearing has been muddled, and the hard work is being done by those least resourced to do it. The Government must learn from this mess as we move towards vaccine certificates.
You may think that getting a medical exemption from mask-wearing works like getting a mobility parking permit — you send in an application with supporting medical information, and if you qualify you get a card. It does not.
There is no application process. Legally, you are either exempt from having to wear a face covering for medical reasons, or you’re not. It’s like how the rule that you must stay home at Alert Level 3 is lifted if you’re going to the supermarket.
That sounds good in theory — people who don’t have to wear masks can just not wear them — but it’s not working like that in practice. People without masks are being challenged to explain themselves on entering a store, or even being told to leave. That must be an awful experience.
Retailers risk breaching the Human Rights Act by discriminating based on disability, as well as privacy laws, if they ask too much about why someone is maskless. Yet retailers also have responsibilities under health and safety law to protect the health of their workers and others in the workplace. Exactly what they need to do to satisfy health and safety law, without breaching human rights or privacy rights, is not clear.
The Ministry of Health worked with disabled people’s organisations, including the Disabled Persons Assembly NZ, Blind Citizens NZ and Deaf Aotearoa, to develop a mask exemption card that people can show if asked why they are not wearing a mask. Again, good in theory but messy in practice, for several reasons.
It doesn’t seem that the fact mask exemptions are built into the Public Health Order was well publicised. Some retailers have expected there to be a Government-run exemption process, and asked people to provide an exemption letter from the Government, when this is not the process.
Medical mask exemptions don’t work like mobility parking permits. Just because someone doesn’t have a card, it doesn’t mean they are not exempt. On the other hand, someone having a card doesn’t guarantee that they’re legally exempt. At one point, you could even download a card and print it out. Some people wonder if the system is being exploited, and how all the staff at one Christchurch restaurant have exemption cards.
The precise wording of the medical mask exemption is ‘‘the person has a physical or mental illness or condition or disability that makes wearing a face covering unsuitable’’. That’s vague. At what point does physical discomfort or mental distress make mask-wearing ‘‘unsuitable’’ instead of just inconvenient?
Even if the exemption was more clearly worded, determining whether someone qualifies is a complex medico-legal assessment. That’s a lot to ask of already under-resourced disabled persons organisations.
The consistent theme here is that because of an absence of clear Government guidance and resourcing, difficult questions are mostly being dealt with by the people and groups least well-placed to answer them: disabled people, frontline staff and under-resourced disabled persons organisations.
At some point we’re going to move to a new vaccination framework where vaccine certificates play a prominent role. The Government will set up a system that allows us to show proof of vaccination, which will be required to take part in activities such as eating out.
It is vital that the Government learns from the mess of mask exemptions. The new system must recognise that there are some people who cannot get vaccinated, and provide for vaccination exemptions so those people are not barred from socialising and participating in community events. But the process around exemptions must be improved.
Obtaining exemptions should be more like getting a mobility parking permit. Medical information should be provided, and an organisation with the resources to make the necessary assessment should make the decision as to whether someone is exempt.
Decision-making should be centralised or involve an auditing process, to ensure consistency.
The wording should be clear — is it that vaccination is absolutely clinically contraindicated (so only a few hundred people might qualify) or is the standard less strict?
Money should not prevent people from getting an exemption. This might mean that the Government funds GPs to make a preliminary assessment or provide relevant medical notes.
Finally, mask-wearing will still be required under the new framework, such as on flights even at the lowest level. The current approach for medical mask exemptions must not be continued — perhaps it can be combined with the vaccine exemption process.
- Dr Simon Connell is a law lecturer at the University of Otago, specialising in accidents and the law.
