With the announcement by the various state governments regarding mandatory vaccinations for specific industries / authorised workers, employers need to manage the process including communication with employees who are choosing not to be vaccinated by the declared deadlines.
As an employer, you have the following options in managing the public health orders in relation to mandated vaccination in your business:
NOTE: Any action will need to wait until the employee/s have not met the requirement, ie. the applicable declared deadline.
While stand down provisions usually require a work stoppage due to supply issues outside the employer’s control or as a result of an enforceable government direction, employees who have not met a requirement to get vaccinated can be stood down. A requirement to be vaccinated is covered under enforceable government direction.
During a stand down, you are not required to pay employees however they will continue to accrue all leave entitlements as normal and you must pay any Public Holidays that fall within the stand down period. We also note that it may also be difficult to just end a stand down once you have issued this direction, if the situation remains unchanged.
Alternatively, if you have employee/s who are refusing to vaccinate as per the mandate, you can direct them to take a period of paid or unpaid leave at which time they can review their options. The direction to take leave – paid or unpaid – is considered a “reasonable position” as it goes towards working with the employee to resolve the issue before any final decisions have to be made by either party.
If paid leave, the employee will continue to accrue entitlements during this period. If unpaid, no entitlements will be accrued and you do not pay for any public holidays.
We strongly urge taking this approach and set a clear deadline for the employee to return to work – for example, provide a one to two week period from the declared deadline and advise that they are required to return to work when they receive their first COVID-19 vaccination or by XXXX date, whichever comes first. You may also wish to tell the employee that if they have not returned by the required date, their employment may be terminated as they are unable to perform the requirements of the role.
TERMINATION OF EMPLOYMENT
If an employee determines they do not wish to proceed with vaccination as required, as outlined above, you have the right to terminate their employment as they will no longer be able to perform the inherent requirements of the role. We advise standing them down or placing them on leave for a period first, to allow time to understand their employment options and ultimate outcomes of any decisions they make and to seek individual medical advice regarding the vaccine if required. We also advise that you inform your employee/s that termination of employment will likely be the outcome if they do not return by the required date.
Although we recommend providing every employee with additional time to meet their vaccination requirements, this is not an obligation, and you can proceed with termination of employment without providing additional time.
Please contact our team as a matter of urgency if you require support with this to ensure you are following due process and fulfilling all of your obligations.
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