The effects of the COVID-19 Delta variant are placing increasing pressure on schools as some states begin the return to face-to-face learning. Schools are eager to have their staff return to work in the most safe and effective way possible. However, COVID-19 vaccination requirements for workers across all industries are at the forefront of discussions as states and territories try to get back to ‘normal’ life post lockdown. Employers are grappling with questions around mandatory vaccination requirements for their workers. Under what circumstances is it reasonable and lawful for an employer to require its staff to be vaccinated?

In this article we break down the options that schools have in enforcing COVID-19 vaccinations for teachers and staff as schools return to face-to-face learning.

What Are Your Options?

• If a public health order or direction applies to your school mandating COVID-19 vaccinations for school staff, then the school must comply with that public health order or direction and issue a mandatory vaccination policy based on the health orders or directions.
• In the absence of legislation or a public health order or direction, schools will need to consider many factors before determining if they will make COVID-19 vaccination a mandatory condition of employment. The general advice is that there is a high hurdle to overcome before an employer can lawfully insist that staff must be vaccinated against COVID-19 where no public health order applies.
• Schools may look to issue a vaccination policy that merely encourages staff to be vaccinated but does not make it a mandatory requirement for staff to be able to work at the school.

As things continue to change and new public health orders are issued, it is important to be flexible and prepared to adjust to these changes to ensure compliance.

Is There a Public Health Order or Direction in Place that Affects Your School?

Currently, New South Wales and Victoria are the only two states that have public health orders in place that require all staff in schools, as well as contractors and volunteers who are likely to have close contact with students and staff, to be vaccinated against COVID-19. The requirements for these states differ depending on the directions of the public health order. Anyone who works on school premises or in an early childhood setting will not be able to work on site if they do not provide evidence of vaccination in the required formats. NSW requires full vaccination by November 8. In Victoria, individuals must have received their first dose by 25 October and the second dose by 29 November. These vaccination status requirements apply to employees, volunteers, and contractors.

This means that schools in those states will have no choice but to comply with these orders and ensure that all staff and other relevant parties provide evidence of vaccination, or they have the appropriate medical exemption before being allowed to enter school premises. Extensive fines may be issued to a school that breaches the relevant orders.

A medical exemption will be an exception to the mandatory vaccination requirement. Both the NSW and Victorian public health orders specify the acceptable medical contraindications and who may complete this piece of evidence. In NSW this must be in the form required by the NSW Chief Health Officer, while the Victorian requirement is more flexible. The appropriate evidence of a medical exemption must be provided to the school before the person is allowed onto the school premises

Schools should be prepared to collect vaccination status and medical exemption information on an ongoing basis. As further vaccines become available, some medical exemptions of staff may no longer be applicable or may need to be reissued to ensure that they are still relevant. It is likely that information regarding vaccine booster doses will also need to be recorded in the future.

Where There Is No Public Health Order in Place that Affects Your School

If there is no public health order in place mandating vaccinations in schools within your state or territory, it will be up to the school to decide whether to make vaccinations mandatory or not. Something that a school will need to consider is whether it wants to make vaccinations mandatory for all staff or individuals who enter school premises, or only mandatory for those staff members who will have close contact with students and other staff.

The Fair Work Ombudsman advises that, in order to justify mandating vaccinations where no public health order exists, it must be a “lawful and reasonable” direction by an employer. Whether a direction is “lawful and reasonable” needs to be assessed on a case-by-case basis and is dependent on the facts of each case.

In determining if a direction to mandate COVID-19 vaccinations may be lawful and reasonable, the nature of schools – large groups of people with close and frequent contact – clearly presents an environment where the likelihood of spreading COVID-19 in the school community is high. In addition, a school’s duty of care to students and its duty of care to workers and “others affected by its activities” as detailed in WHS/OHS/OSH legislation require it to take all reasonably practicable steps to minimise the risk of harm arising from the very obvious hazard of COVID-19. Vaccination against COVID-19 is now a proven measure to reduce the risk of serious illness, so provided that vaccines are available, a strong argument can be made justifying vaccination.

Any direction will also need to take into account employment contracts, applicable awards and enterprise agreements, and any state and territory laws such as anti-discrimination laws.

Any school mandating vaccinations where no public health order or direction applies must also consider how to address staff members who may have a legitimate reason for not being vaccinated, such as a substantiated medical condition. Requiring a staff member to be vaccinated when they have a medical contraindication may be a form of disability discrimination. A school should therefore consider the conditions under which they will allow a person to continue working if they have a valid medical exemption from vaccination, such as what form of evidence the school will require. Whether other objections to being vaccinated such as political or religious reasons are a valid legal basis to refuse a school’s lawful and reasonable direction to be vaccinated has not yet been considered by the courts or regulatory bodies.

It is important for schools to stay on top of these issues as new cases in courts and tribunals will begin to shed light on what is considered lawful and reasonable directions and what may be considered a valid objection to being vaccinated.

Consequences of Employees Choosing Not to Vaccinate

While a school may decide that the consequences for staff who choose not to be vaccinated should not be included in a COVID-19 vaccination policy communicated to staff, where vaccination has been mandated either by a public health order or a school policy, a school must nevertheless consider how it will deal with employees who choose not to be vaccinated. This may be dealt with on a case-by-case basis depending on the reasons for the employee’s decision, or the ability or desire of the school to retain the services of the employee. However, it would be prudent for a school to be fair and consistent in its application of any policy in order to reduce the risk of adverse action or unfair dismissal claims. It is also essential that the school consults with the employee prior to making a decision.

Encouraging COVID-19 Vaccinations

If no public health order exists, an approach that many organisations are taking across different industries is to encourage COVID-19 vaccinations, but not making them mandatory. Schools may be able to encourage vaccinations through measures such as allowing staff to be vaccinated during work hours, providing paid vaccination leave if staff become unwell from the vaccine, or providing other initiatives to incentivise staff to be vaccinated. The school can than make an assessment as to whether it is adequately meeting its WHS/OHS/OSH obligations and put measures in place to ensure that the workplace is safe and does not present a high risk of spreading COVID-19.

Privacy Considerations

The COVID-19 vaccination status of staff members and any other individuals is considered sensitive health information under the Privacy Act and schools must comply with their obligations under privacy legislation. The Office of the Australian Information Commissioner (OAIC) has advised that an employer can collect sensitive health information without the consent of employees where the collection is required by law, which includes a public health order or direction. Where a staff member refuses to provide information regarding their vaccination status and a public health order or direction applies, a school can deem that staff member to have not been vaccinated and take appropriate measures. As state and territory public health orders are constantly changing, it is important to monitor these developments and review the specific requirements and the school’s right to collect vaccination status information of staff.

When collection of vaccination status is not required by law i.e. a public health order or direction, an employer can only collect information about an individual’s vaccination status where the person consents and the collection is reasonably necessary for the workplace’s functions and activities. The usual requirements under the Privacy Act apply in relation to having collection notices (a requirement under Australian Privacy Principle 5) when collecting vaccination status from employees as well as from contractors, volunteers, and visitors. A school must explain the purpose of collecting staff members’ vaccination status, how it will be used and disclosed, and the consequences of not providing the information. Schools should ensure that they collect and use only the minimum amount of information necessary to maintain a safe workplace, and the information should only be disclosed on a ‘need to know’ basis.

Workplace Health and Safety

It is important to remember that there are additional obligations under workplace health and safety legislation when finalising the schools COVID-19 vaccination policy. Under WHS/OHS/OSH laws, employers have an obligation to consult with workers about control measures to address WHS/OHS/OSH risks, which include COVID-19 policies. Schools must provide their staff with a reasonable opportunity to express their views about the policy and need to take these views into account when making decisions.

Conclusion

Requiring mandatory vaccinations in schools and in workplaces generally is a contentious issue, with a number of cases currently before the courts. It is an area with not much legal history and one that is likely to be constantly changing as the COVID-19 virus presents new challenges to employers. It is likely that a school’s policy will have more than one iteration as the risk of harm may vary from current and new strains of the virus, vaccines and other measures develop, cases are decided in the courts and public health orders are introduced or updated. These may all affect how a school decides how best to respond.

It is important to be agile during these times and ensure that you are following the latest health advice and advice from key regulatory bodies, such as the Fair Work Ombudsman, OAIC, and your state or territory WHS/OHS/OSH regulator when developing your school’s vaccination policy.

At CompliSpace we have provided our clients with several template COVID-19 policies and register options to consider to assist clients to adopt COVID-19 policies and registers appropriate for their school.

If you would like assistance with developing a COVID-19 policy and register, please contact us here.