Vaccinated Staff Only?  Due Process for Employers

We have been hearing a lot of “no jab, no job” discussion, and recently the Government released further information regarding roles in the Education, Health and Disability, hospitality and other sectors that would be required to be filled by a vaccinated worker under the COVID-19 Public Health Response Act 2020 and its amendments.

What is less discussed is the consultation process that Employers will be expected to go through regardless of whether their vaccination requirement is based on an Order within the Act, or their own Health and Safety Risk Assessment Framework.

Firstly, an organisation must assess the grounds upon which they believe vaccination is a requirement for specific roles and role types. We recommend that this is a collaborative process with employees, so that they understand what grounds have been considered, and they have had a chance to seek clarity and provide feedback.

Then, with those decisions in hand, the organisation needs to begin a consultation process, in good faith with employees. The consultative process will include:

• gathering employee-specific data about their vaccination intentions and status. This must be done in compliance with the Privacy Act 2020, which includes but is not limited to being specific about who can collect information, where it will be stored and for how long, who will have access to it, how the information will be used, and what assumptions the employer will make should the employee choose not to provide the requested information to the employer.
  
  
• proposing how the incumbents of each of role would be impacted due to the implementation of a requirement for their role to be filled by a vaccinated employee, such as the timing of implementation, and the exploration of redeployment options.

In regards to timing, we already know that the vaccination process can take upwards of 3-4 weeks, therefore this could mean allowing reasonable time and notice for the decision to be vaccinated – much like the Government is or has allowed for the Border, Education, Health and Disability sectors. Other organisations have worked with employees to agree on periods of leave (generally unpaid) and suspension of termination whilst employees consider their options or manage personal health situations that medically impede their ability to be vaccinated in the set period of time.

During lockdown restrictions we also know that access to advice for employees can be harder, therefore, allowing reasonable time for employees to provide feedback may look different to other time periods or prior consultation processes conducted by the organisation.

The consultation itself must be thorough, providing as much information upfront to potentially impacted employees, so they can make well-informed decisions. Genuinely, what are the other options for employees who choose not to be vaccinated but whose role is proposed to be filled by a vaccinated employee? Have all alternative working arrangements (such as working from a different location or from home, use of PPE, testing etc.) been considered? Has all redeployment been explored? Have employees had access to this information before deciding on their vaccination approach?

For those roles not covered by the Government Order, whilst there is lack of precedent regarding what Health and Safety Risk Assessment Framework would be deemed sufficient to justify a role being classified as required to be filled by a vaccinated worker, there is ample precedent regarding the requirement for a genuinely two-way consultative process; and in times of ambiguity or new requirements, this employer obligation is likely to be strongly enforced.