What do we do when an employee won't comply with customer vaccination requirements for site entry?

We have previously discussed ways in which employers can navigate the emerging area of Public Health Directions / Orders to vaccinate, as well as implementing your own mandatory vaccination policies as a lawful and reasonable direction.  But what if you aren’t subject to a Public Health Direction / Order and don’t have a mandatory vaccination policy of your own, but your business performs work for organisations that do – particularly for site entry? Employers will struggle to direct an employee to vaccinate based on customer vaccination requirements alone.  What employers are able to do however, is direct an employee to provide evidence of their vaccination status so you can determine that they can meet the inherent requirements of their position (ie: where attending customer sites is an inherent requirement).  If an employee fails to provide this information it isn’t strictly misconduct, rather it serves as confirmation that they don’t have the capacity to fulfil the inherent requirements of their position.  Given the inability to attend site is an incapacity issue, it is critical that employers assess whether other reasonable accommodations can be made, e.g. there may be enough customers who do not mandate vaccination that the employee could perform work for etc.  At this stage, most businesses still aren’t subject to Public Health Directions, so most employers should assume that vaccination is not an inherent requirement unless they are genuinely in a position where the employee can’t perform any work for them because they can’t attend site because they are unvaccinated (ie: no capacity to perform their role). For employers who are in the unfortunate position of needing to terminate an employee for incapacity, we have created for Retainer Clients a template suite consisting of:

1. invitation to attend a meeting (essentially a ‘show cause’ letter); and

2. termination letter.

All the usual risks apply whenever termination of employment is considered. Employers should be particularly mindful of unfair dismissal, adverse action, discrimination, breach of contract and workers compensation claims and we recommend seeking our advice on these matters.

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