Mandated Vaccinations: What to do?

Even with the mandating of the COVID vaccination for many organisations, employers still need to follow a process before deciding to terminate employment. An employer’s good faith obligations remain.

The first step is to determine whether your organisation is covered by the mandate and which positions within your organisation are subject to the requirement.  Here is the link to the government’s information on this.

It is then necessary to determine who is vaccinated and who isn’t. An employer can ask this question. An employee may choose not to tell you. If an employee is unwilling to divulge this information the employer can treat them as being unvaccinated.

Fundamental to any decision that may adversely affect an employee, the employer has an obligation to consult with the employee first. With each employee who hasn’t been vaccinated make it clear (we recommend in writing), the likely consequences of that decision. The employer does need to consider whether there are alternatives to dismissal, such as redeployment to a position that doesn’t require vaccination. Provide a timeline for when decisions will be made.

Meet with the employee, invite them to have a support person or representative with them, discuss what their concerns are and address them if you can. If they don’t feel they have enough information about the vaccine or have some specific questions, recommend they discuss this with their GP or provide access to a medical practitioner through the workplace.

Consider the employee’s feedback and then make your decision. If the position requires a vaccination (the first dose of vaccine must be administered by 30 October and the second dose by 1 December 2021), and the employee will not be vaccinated, and you do not have any alternative positions they could be redeployed to, and you have considered whatever additional feedback they have provided but it does not sway your view that vaccination is required, then you need to advise the employee their employment will be terminated. The notice of termination should include a caveat that states if the employee does decide to get vaccinated and this occurs before 30/10/21, their notice of termination would be withdrawn.

Irrespective of the government’s dates, you must give the notice specified in the Employment Agreement. It may mean that after 30 October, when an unvaccinated employee can no longer work, you will be paying them in lieu of notice (check the Employment Agreement to ensure you can do this).

Over arching all of this is the requirement to conduct health and safety risk assessments and the vaccination mandate does not preclude this requirement. Vaccinated employees can still potentially get COVID-19, and the jury is still out on the issue of transmissibility. So remain vigilant, keep safe and remember people still have a choice on being vaccinated – there are now however greater consequences from that choice.