Mandatory Jabs for Construction Workers

On 16 September 2021, the State government announced that construction workers now have until 23 September 2021 at 11:59pm to have had their first dose of a vaccine. Although the precise details of the direction have not yet been published at time of writing, the mandating of vaccination for employees in this sector will mean their employers may be within their rights to dismiss an employee who refuses to comply with the government’s directive without a valid medical reason.

As discussed in our earlier article (which you can find here) the direction by an employer for an employee to be vaccinated will only be valid if it is both lawful and reasonable. The government’s mandating of vaccination for construction workers almost certainly makes it an inherent requirement of the role, with a failure to fulfil that requirement justifying dismissal.

How do employers follow this direction?

At time of writing, specific details were not yet published by the Chief Health Officer. However, to ensure the direction is followed employers in the construction industry should:

  • In line with government orders, encourage your employees to book a vaccination appointment as soon as possible. Construction workers now have priority booking so they should be able to secure an appointment quickly.
  • Ask your employees to show proof of their first dose (or proof of an appointment) by 11:59pm on 23 September 2021 and keep a record of this.
  • For applicable employees with medical exemption, request that they provide proof of exemption from a GP.

What happens if an employee refuses to follow this direction?

If construction worker refuses to follow the direction to be vaccinated and does not have a substantiated medical reason to justify that refusal, their employer will likely be entitled to dismiss the employee. Such a dismissal can likely be justified on the basis that the employee has refused to follow a lawful and reasonable direction and is unable to perform the inherent requirements of their role.

Like any dismissal, a fair process should be followed before that dismissal is confirmed. Among other things, this requires the employee to be told of the proposed reason for dismissal and given an opportunity to respond before a decision is made.

A practical step employers in the construction industry can take now is to issue a written direction to all of their construction workers to book in for a vaccination as soon as possible. That direction should be accompanied by a warning that failing to comply with the direction may result in disciplinary action up to and including dismissal. It should also specify that any employee who believes they have a valid reason to be exempt from the requirement will need to produce a letter from their GP which substantiates the reason.

Finally, given the detail of the new directive and who it applies to has not yet been released, we would strongly recommend employers seek up to date advice as further information becomes available.

If you have any further queries or require any further information about requiring employees to be vaccinated, please do not hesitate to contact James Remington on 03 5337 0266.

Author: James Remington

With thanks to Cassie East for her assistance in the preparation of this article.