Compliance Update for Public Health Direction - TAS

Tasmanian businesses are currently dealing with a Public Health Direction compliance deadline of 21 November 2021.

How to respond to non-compliance with a Public Health Direction/Order

Dealing with non-compliance with a public health direction is slightly different than dealing with a breach of a policy. As a result, the process is shorter but slightly more complex in that there are two potential options as to how a non-compliance could arise. 

To assist we have created for Retainer Clients a flow chart explaining the options and process. *NB to commence this process the employer must have previously sent out the requisite notification letter (see our previous articles and templates for Retainer Clients).

The first option can be summarised as a Capacity Issue – ie the ability to attend the workplace is an inherent requirement which requires either sufficient vaccination or exemption – as distinct from a refusal to provide information as to vaccination status which is a Misconduct Issue. In dealing with the Capacity Issue, an employee could simply be slow in attaining the sufficient vaccination status or alternatively gaining an exemption. 

We recommend meeting with the relevant employee, obtaining reasons for non-compliance and then seeking to achieve a reasonable accommodation to deal with their incapacity - which may be taking of leave or an alteration to their work duties or location etc. If reasonable accommodations can be achieved then simply record the agreed arrangement, implement on a temporary basis and review at an agreed time. Given the strict compliance nature of this issue the time taken for scheduling this meeting can be relatively short. As a general rule we recommend at least 24 hrs notice.

If reasonable accommodations can’t be achieved then the employee, because of their non-compliance with the public health direction is not ready, willing and able to perform their role (ie does not have the capacity to meet the requirements of the position) and may not be entitled to being paid (subject to the terms of their contract of employment and industrial instrument). In such circumstances we recommend providing them with a letter which reiterates the requirement under the public health direction and then proceeds to invite them to participate in a show cause process which will enable them the opportunity to provide reasons why their employment should not be terminated on the basis of their incapacity to comply with a public health direction (which will invariably prevent them from attending a workplace or providing particular services) if they continue.

If however the employee advises they are refusing to provide the requisite information as to their vaccination status then the employer will treat the issue as a Misconduct Issue – as distinct from a Capacity Issue.

We recommend first meeting with the relevant employee, taking feedback as to their reasons for non-compliance and then reiterating the obligation for compliance. Record minutes of this meeting. Given the strict compliance nature of this issue the time taken for scheduling this meeting can be relatively short. As a general rule we recommend at least 24 hrs notice.

If the employee continues to refuse to comply then we recommend embarking on a process which is more akin to the usual refusal to follow a lawful and reasonable order or breach of policy process. Employers should strictly follow any disciplinary policy or requirement in a contract of employment or industrial instrument. In these circumstances we recommend writing to the employee and advising them that their refusal to comply with the public health direction by failing to provide any information as to vaccination status prevents them from attending the workplace or providing services and further prevents the employer with complying with the public health order’s requirement to collect, keep and maintain vaccination records. We recommend providing a specific written direction to comply and notifying the employee that they will now need to provide reasons why their employment should not be terminated in a show cause process.

To assist we have created for Retainer Clients a template suite consisting of letters to deal with non-compliance of Public Health Orders (Tas).

*NB All templates should be tailored to suit your organisation’s specific circumstances. 

News Breakers

The NSW Supreme Court has rejected another challenge to the State's powers to mandate COVID-19 vaccination for categories of workers via a public health order, ruling against a senior ambulance officer and religion-based ‘conscientious objector’ to inoculation. The ‘newer argument’ of religious discrimination was defeated on the basis that the ‘conscientious objector’s’ views were a departure from public statements made by the Catholic Church in response to the pandemic and the court once again declined to interfere with the Minister’s power to make public health orders.

Stay tuned for more updates.

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