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n the absence of any legislation or public health orders, the current advice from the Fair Work Ombudsman, as well as Safe Work Australia, is that there is a high hurdle to overcome before a school can lawfully insist that school staff be vaccinated against COVID-19.

Context

Herd vaccination against COVID-19 has been the holy grail for winning the war against COVID-19 ever since it became a pandemic. However, now that vaccines are finally becoming available, there appears to be a far greater spectrum of responses. Concerns have been raised relating to the efficacy of each of the vaccines, possible side effects, unknown effects on pregnant women and certain health conditions, together with the more interesting conspiracy theories relating to mass mind control, sterilisation and tracking of individuals.

In Australia, as we currently have a relatively very low level of infections, serious health outcomes, and deaths from COVID-19, the urgency of being vaccinated is not the same as in e.g. Europe, the USA, or in many Asian countries. All of these reasons add up to why a number of individuals in Australia are not embracing the vaccines just as the vaccine rollout program is underway. Having said all of that, not too many people would actually believe that the threat of COVID-19 will disappear through just mask wearing or hand sanitising.

Available Guidance to Employers

The Commonwealth Government has not made COVID-19 vaccinations mandatory although its goal is to have as much of the population vaccinated as possible. The advice from the Fair Work Ombudsman, the federal employment regulator, and Safe Work Australia appears to be discouraging employers from leaping to imposing mandatory vaccinations without very careful thought.

Employment Law

The Fair Work Ombudsman approaches the issue of requiring COVID-19 vaccination as a condition of (continuing or new) employment, as a question of whether it is a “lawful and reasonable direction”. If it is not a lawful and reasonable direction then, if the employer takes any disciplinary action such as terminating the recalcitrant employee’s employment, this would almost definitely constitute unfair dismissal.

The Fair Work Ombudsman states:

“In the current circumstances, the overwhelming majority of employers should assume that they won’t be able to require their employees to be vaccinated against coronavirus.”

The Fair Work Ombudsman however lists the following circumstances which would support a decision to mandate vaccinations for staff as a lawful and reasonable direction:

• there is a Public Health direction/order/legislation (which has not happened yet)

• vaccination against COVID-19 (not just flu) is a condition in an enterprise agreement or award (which has not happened yet)
• it is in the employee’s employment contract. (This should be specifically related to vaccination against COVID-19, not a general flu). This would probably be enforceable for new employees, but can only be added retrospectively to existing employees’ contracts by agreement.
• if it did not breach anti-discrimination laws, for example, by disadvantaging pregnant women or people with a disability for whom vaccination in some circumstances may present a greater risk.

To be a “lawful and reasonable direction”, the vaccine must, at a minimum, be actually available to employees. Professor Brendan Murphy, head of the Commonwealth Department of Health and formerly the Chief Medical Officer, said that he was “pretty confident” that the planned rollout of the various vaccines would have most Australians receiving (or being given the opportunity to receive) at least one dose of vaccine by October this year.

Workplace health and safety legislation provides further guidance on the other criteria that determine the lawfulness and reasonableness of each employer’s direction for employees to be vaccinated.

Workplace Health and Safety

Under WHS/OHS/OSH legislation, it is the duty of the employer/PCBU (Person Conducting a Business or Undertaking) to eliminate, or if that is not possible to minimise as far as reasonably practicable, the risk to the health and safety of workers from a foreseeable hazard. In this case, the hazard is COVID-19. The required methodology for addressing a hazard involves assessing the risk of harm and consulting with employees in determining the reasonably practicable control measures that will be put in place. This approach, on a case-by-case basis, is endorsed by the Fair Work Ombudsman.

While on the face of it, vaccination would appear to be a reasonably practicable control measure, Safe Work Australia in its advice on vaccination on a sector-by-sector basis, is strangely consistent across the education and training, aged care, early learning and even health care sectors stating that “[i]t is unlikely that a requirement to be vaccinated will be reasonably practicable”. The reasons given are that:

• a vaccine may not yet be available to all workers
• institutional public health experts have not yet recommended that the vaccine be made mandatory in any industry (both of which may change)
• the risk of transmission in the particular circumstances does not warrant it, such as a school in a regional area where there has been no community transmission
• some people may have medical reasons for not being vaccinated.

However, SafeWork Australia recommends that each employer undertakes a risk assessment to determine whether it is reasonably practicable to mandate vaccinations in their particular circumstances, or whether other control measures would adequately address the actual risk of COVID-19 infection and severe illness in the workplace.

Contractors and Visitors

Safe Work Australia's advice is far less ambivalent in relation to requiring customers and visitors to a workplace to provide proof that they have been vaccinated before entering the workplace:

“ you might still want to require this [proof of vaccination] as a condition of entry to your premises. Before you take action to impose this kind of requirement, you should seek advice as there may be privacy and discrimination issues that apply.” 

It would appear that the school has the right to impose this requirement on contractors and visitors provided that it carefully addresses issues relating to privacy (collection of sensitive/health information) and discrimination in relation to individuals who have a medical issue preventing them from being vaccinated.

What Should Schools Do?

In the absence of any changes to legislation or public health orders, summarising the advice from both the Fair Work Ombudsman and Safe Work Australia, each school should make an assessment based on their specific circumstances to determine whether they should require their staff to have COVID-19 vaccinations.

There does not appear to be a clear-cut answer. However, schools should take into account the following factors, which are an amalgam of the Fair Work and SafeWork Australia advice:

• the risk of transmission of COVID-19 in their school e.g. the higher risk in Melbourne and Sydney compared to rural and regional areas that have had no community transmission cases and are far from the quarantine hotels
• the risk of harm if employees become infected– including the presence of individuals who would be vulnerable to severe illness if they contract COVID- 19

• the increased risk of infection where employees are exposed in close proximity to other people as part of their work. Teachers may be more exposed than some office staff
• whether there are employees who interact with large numbers of other people in the course of their work who could contribute to a ‘super-spreading’ event if they were to contract COVID-19 
• whether there are other control measures available and in place in the school that may minimise the risk of infection, so far as is reasonably practicable. Where the risk of exposure to COVID-19 is relatively low, wearing masks, social distancing, hand-sanitising, and good hygiene may be sufficient without requiring vaccination
• managing employees who decline to be vaccinated for medical or health reasons, and whether a requirement for them to be vaccinated or lose their job be unlawfully discriminatory. Further information on COVID-19 vaccinations for pregnant or breastfeeding women, people with compromised immune systems, and more, is available from the Department of Health website
• the likely impact on the school if some employees refuse to be vaccinated, including the likelihood of other employees refusing to come to work because another employee refuses to be vaccinated.
  
  

Conclusion

In times of rapid change, decisions need to be made based on the best information available at the time. Then the key is for a school to be sufficiently flexible and prepared to change if new circumstances arise or when new information becomes available. As with all employment and workplace health and safety matters, if you consult with your staff, listen to concerns and issues and address them where reasonably practicable, you greatly increase the chances of a sustainable solution.