4 minute read – Updated 24-12-21
UPDATE: The Western Australian government announced the intention that all workers who were previously required to get two doses of the COVID vaccination will now also be required to get a booster shot within one month of becoming eligible. Our thought? Watch this space and visit COVID-19 coronavirus (www.wa.gov.au) for the regular updates on the eligibility period, was 6, now 5… and likely to keep reducing in line with ATAGI Statements and guidance.
The WA government have issued their mandates, the news channels are blasting it out 24/7 and the general person in the street has taken a view on it.
Mandatory vaccinations for the workplace.
Government deadlines are in place for proving a first and second jab in Western Australia – and by now you’ll likely already guess who in your team may refuse to get vaccinated.
So what do you do now?
We will focus this article on preparing how to respond to a team member who will not be first or second jabbed by the due deadlines… on the basis you are an SME business!
Note: Please always seek advice before acting and relying on the content (as EVERY situation will be different).
The Links
Unlike most articles, we though it best to get straight to the links for planning and to keep up to date with WA Government Health Orders, The Fair Work ombudsman and more!
Employee entitlements and obligations
WA Govt Vaccination FAQ (trust us- it’s gold to know in WA)
COVID 19 advice page (WA Only)
COVID and WHS guides for your industry
First things first
When considering whether you can stop an employee from entering the workplace because they refuse to get vaccinated, there are initially three KEY elements to be mindful of.
- Have you consulted?
- Have you collected their records?
- Is the direction to not come to work ‘lawful and reasonable’?
Consultation
Why ‘consult’ when the government is telling your business or industry you *have* to be vaccinated to work?
This is because you will be expected to have individually discussed an employee’s situation before issuing a blanket direction to not attend work if unvaccinated.
This should be genuine and can start with a few easy steps such as:
- Holding a group meeting with everyone to tell them of the need for vaccinating.
- Following up with an internal memo with information from the government FAQ (see link in this article)
- Having one-on-one discussions with team members who have not provided ‘proof’ to satisfy yourself that there are no exemptions for that person.
Records
The government have made it clear that both the business AND the employee can be fined for working while unvaccinated. So at the very least there is a financial need to make sure you have satisfied yourself that an individual has been vaccinated.
The records you collect are governed by the Privacy Act 1988, so collect and store them just like any other private and confidential information.
By also collecting records, you’ll also be in a position to identify those individuals you may need to issue a ‘lawful and reasonable’ direction to (see following point).
Lawful and reasonable
This relates to your ability to…
…issue an instruction to an employee and have it followed.
Like not attending the workplace because they are not vaccinated.
HOWEVER…. what is lawful and reasonable can vary widely between employers, industries and individuals.
The reasons might include:
- if the employee has a medical exemption?
- can the employee work remotely to do their job (or a different work system can allow them to do their job)?
- what is the spread of covid in the community at the time of the direction?
- is there a government direction (obvious)?
- … and many others
The key is to ensure you can show you have considered every person’s inability to show proof of their vaccination and then considered any outright refusals on the merits of the case put forward by the employee.
Some steps right now…
The second best time to plant an oak tree is today….
The following are SUGGESTIONS and can easily be converted into a memo or letter at any stage *.
* We prefer a human-first approach and physically talking about ‘repercussions’ ONLY with people who have clearly indicated they will not get jabbed. Why risk upsetting everyone else in the meantime.
- Issue a memo / letter about mandatory vaccinations that are applicable
- In your next team meeting, discuss providing proof.
- If anyone says ‘I’m not getting jabbed’, talk to them one-on-one.
- One-one-ones should address what happens if they aren’t able to provide approved evidence of vaccination or Medical Exemption by the due date.
- Follow up on vaccination proof each week until the first deadline
- Decide on issuing a formal (and lawful and reasonable) direction BEFORE THE DEADLINE – also consider including a direction to not attend the workplace
And if the deadline has passed?
Do not terminate the employee!!!
There are reasons to not jump to this step – even on the basis that you have consulted, collected records and issued a ‘lawful and reasonable’ instruction.
Instead, it is time to ask the employee to not attend work…. and for you to seek advice!
It is likely, you will be in a position to first ask the employee how they want to address their absence from the workplace until they can show proof or an exemption?
Annual leave? Pay without leave? Use these as your starting point….
And if it’s all still confusing?
If you have demonstrated a process that follows at least the above steps, speak to the Fair Work Ombudsman or your friendly neighbourhood team at Quantum Human resources.
Ask them how to formally write to the employee to address their absence and protect your business (and the employee) from breaching the mandates in your state….
Thanks for reading!