The current COVID-19 Order requires face coverings in some circumstances, for example in retail businesses at level 2 and on public transport at all alert levels. There is a medical exemption which, in practice, has been muddled. And, the hard work is being done by the people least resourced to do it. The government must learn from this mess as we move towards vaccine certificates.
You might think the medical mask exemption works like mobility parking
You may be familiar with mobility parking permits, which you get through the following process:
Fill out an application form including a section filled out by your GP; and
The application is then assessed and a decision is made as to whether the person meets the criteria.
A successful applicant is sent a permit. They then display the permit on their vehicle and can park in designated mobility parking spaces without being ticketed/towed. The system doesn’t work perfectly, with people without permits sometimes using the spaces, inconsistent enforcement, and people sometimes harassing permit holders. The mobility parking scheme isn’t a perfect analogy for mask exemptions, but it’s a useful reference point.
How the medical mask exemption works
The medical mask exemption does not work like mobility parking. The exemption from wearing a face covering is built into the active COVID-19 Public Health Response Act Order.
What this means is you do not have to go through an application process to be ‘granted’ the medical mask exemption: legally, you are either exempt from having to wear a face covering for medical reasons, or you’re not. It’s like how you don’t have to apply to leave home for exercise during level 3.
Messy in practice
That sounds good in theory – no hoops for people to jump through and people who don’t have to wear masks can just not wear them. But, it’s not working like that in practice. There are lots of stories about people being challenged to explain themselves on entering a store without a mask, or even being told to leave for going maskless. That must be an awful experience to go through. The retailer is potentially breaching the Human Rights Act by discriminating on the basis of disability, as well as our privacy laws if they ask too much about why someone is maskless.
Retailers also have responsibilities under our health and safety law. These can pull in the opposite direction of human rights and privacy concerns. Retailers must take reasonably practicable steps to protect the health of their workers and other people at the workplace. Covid-19 is in our community and I don’t think it’s safe to assume that a person without a mask qualifies for an exemption. This suggests that businesses have to do something in the event that a person without a mask approaches their store. Exactly what they need to do to satisfy health and safety law, without breaching human rights or privacy rights, is not clear.
Enter the mask exemption cards
Because of this, the Ministry of Health worked with disabled peoples’ organisations to develop a mask exemption card. This is what the official covid-19 website says:
We know that some people who have a disability or health condition may not be able to wear a face covering. An exemption card has is available that you can show to transport operators, retailers and service providers.
Exemption cards are not mandatory but make it easier whenever you need to explain that a face covering is unsuitable for you.
The Disabled Persons Assembly NZ, Blind Citizens NZ, and Deaf Aotearoa can all provide cards.
Things are still messy, even with the cards. There are a number of reasons for this. It doesn’t seem like the mask exemptions built into the order were well publicised. Some retailers seem to have expected there to be a government-run exemption process, and asked people to provide a letter from the government, when there was no process to generate such a letter.
I suspect that the availability of mask exemption cards has given some people the impression that medical mask exemptions work like mobility parking permits, when they don’t. Just because someone doesn’t have a card does not mean they are not exempt. On the other hand, that someone has a card doesn’t guarantee that they’re legally exempt. At one point, you could just download a card and print it out. There are some reports of people attempting to exploit the system, and even questioning of whether it is “too easy” to get a card.
The precise wording of what I’m calling the medical mask exemption is this:
the person has a physical or mental illness or condition or disability that makes wearing a face covering unsuitable
That’s pretty vague. At what point does physical discomfort or mental distress make mask-wearing “unsuitable” instead of just inconvenient? The scope for exemptions could be given a narrow or broad interpretation. I’d lean towards a broader one since we aren’t super-strict about masks generally (you can remove a mask to eat or drink, and there’s no rule for how effective a face covering has to be as long as it covers your mouth or nose).
Even if the exemption was more clearly worded, determining whether a particular person qualifies is a complex medico-legal assessment. That’s a pretty difficult task to hand to 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 in practice by the people and groups least well-placed to answer them: disabled people, frontline staff, and under-resourced disabled persons organisations.
Will things get better under the brave new world of traffic lights and vaccine certificates?
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 all sorts of things such as going out to eat.
As we move to this system, the government must learn from the mess of mask exemptions. My starting point here is that the government got it right that there should be a medical exemption from mask wearing. The new system must also recognise that there are some people that cannot get vaccinated, and provide for vaccination exemptions so those people are not barred from socialising and participating in community events. However, the processes around exemptions must be improved.
As I understand it, under the new system, everyone will need to show their vaccine certificate to gain entry into a venue. That is already an improvement on the mask exemption mess in several ways. First, vaccine exemption holders will have their status checked at the same point as everyone else, and can then freely move around the venue – no being singled out for challenge. Second, the system should make it clear that vaccine exemption-holders can enter a venue, without the staff quizzing the person any further.
The process for obtaining exemptions must be more robust. It should be more like getting a mobility parking permit than the medical mask exemption. Medical information should be provided, and an organisation with the resources to make the necessary medico-legal assessment should ultimately make the decision as to whether someone is exempt. So that the rules are applied consistently, decision-making should be centralised or some kind of auditing process must take place. The wording should also make it clear what is required – is it that vaccination is absolutely clinically contraindicated (in which case it seems only a few hundred people might qualify) or some less strict standard?
Money should not prevent people from getting an exemption. This might mean, for example, that the government should fund GPs to make a preliminary assessment or provide relevant medical notes.
Finally, it looks like 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 should not be reproduced – perhaps there is even a way of building assessment of medical mask exemptions into the vaccine certificate system.
Thanks to Dawn Duncan for comments on a draft version of this piece