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Decisions About the Unvaccinated

For organisations where clear, unambiguous government vaccine mandates are in place (e.g. border workers, health sector, teachers), the decisions required are pretty clear…not pleasant, but the decision is essentially out of the employer’s hands. The next group of businesses (e.g. hairdressers, hospitality, gyms), where there isn’t a vaccination mandate but under the traffic light system all employees need to be vaccinated otherwise the organisation can’t operate, the waters are a little muddier. Still unpleasant, but it is reasonably clear what needs to be done for the viability of the business. The difficulty may arise in determining whether the business is deemed to be ‘close contact’. Not many have the option of operating contactless or closing for the foreseeable future.

For everyone else…it’s a bit like swimming in treacle. A great deal more judgment and opinion is required, and from this there are more likely to be challenges to the decisions made. Rather than a termination of employment stemming from a government mandate to be vaccinated or business need based on being a ‘close contact’ business, this third category of organisations will need to rely primarily on the health and safety obligations of the employer.

As such the first step is to carry out a risk assessment for each position to determine if it needs to be carried out by a vaccinated person. WorkSafe are coming up with a risk assessment template sometime in mid December (despite the legislation coming into force on 25 November), that employers can use. In the meantime WorkSafe do have some guidelines on determining if a position should be undertaken by a vaccinated employee.

The risk assessment must involve the employee and their representative if they have one. Consultation is key. If it is concluded the position must be carried out by a vaccinated person, after considering alternatives to termination of employment (such as redeployment), the employer is then required to advise the employee of the date they must be vaccinated by. If the employee does not comply, a minimum of 4 weeks’ paid notice (in writing) must be given. If the Employment Agreement provides for greater notice, then this is the period given.

There is another category of employee whose employment may be justifiably terminated if they don’t get vaccinated. This could occur if the position becomes untenable because the requirement to be vaccinated is determined by customers. If customers require only vaccinated employees to come to their organisation (as part of their health and safety requirements), even with the reorganisation of work, there might not be sufficient work available for the unvaccinated employee.

The scenarios are many and decisions difficult. Involve employees as much as possible and call us if you have any questions.

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