There has been a great deal of ‘media chatter’ regarding the development of vaccines against COVID-19. The world is ‘holding its breath’ in anticipation of the impending release of these much-needed vaccines. However, will schools be able to insist that their staff are vaccinated when a viable vaccine becomes available?
Since early this year, we have been reminding schools that they need to review their infectious diseases or immunisation policies in light of the COVID-19 disease to ensure that they are fulfilling their work, health and safety obligations to their students and their staff.
Just to clear up any possible confusion as to what some key terms mean, according to the Australian Government Department of Health:
- vaccination involves receiving a vaccine from a needle or drops in the mouth.
- immunisation is the process of both receiving a vaccine and becoming immune to the disease as a result.
- coronaviruses are a large family of viruses that cause respiratory infections. These can range from the common cold to more serious diseases.
- COVID-19 is a disease caused by a new form of coronavirus.
In March 2020 the World Health Organisation published an excellent resource for schools: “Key Messages and Actions for COVID-19 Prevention and Control in Schools”.
Note that, as at 13 November 2020, school education staff are not considered to be in the initial priority groups for COVID-19 vaccination identified by the Australian Technical Advisory Group on Immunisation (ATAGI).
Collection of Immunisation Status Records
In 2016 and in several articles since then, we have advised schools that they are required, under Public Health Acts or Education Acts in most states and territories, to request and keep records of the immunisation status of children being enrolled. If these records are not specifically requested at enrolment or at the time of interview, especially for older children, they can sometimes be omitted from student files. Not having these records on file is not good practice. The health records must also be stored in a manner compliant with the 13 Australian Privacy Principles (APPs) in the Privacy Act 1988 (Cth) (Privacy Act) and relevant state Acts.
Schools should ensure that their student medical records are up-to-date so that in the event of an outbreak of coronavirus in the future, following the development and deployment of an effective vaccine, non-immunised children can be identified quickly and, if the relevant legislation allows for it, excluded from school for their own safety if necessary.
However, schools are not legally required to collect and store immunisation/vaccination or other health records/information about their staff or their regular contact volunteers such as their governing body members. Of course, there are some exceptions to this rule, including for staff who are pregnant. However, unless jurisdictional work, health and safety laws expressly require the collection and storage of this data to maintain effective duty of care for employees, schools cannot insist that staff provide this health information.
Infectious diseases such as COVID-19 will continue to present a workplace health and safety risk to teachers and staff at schools even after a COVID-19 vaccine has been widely deployed. Therefore, staff who are not vaccinated for COVID-19 may, like unvaccinated students, also need to be excluded or moved to another role or area of the school where they can feel and be safe in the workplace.
Management of Sensitive Data
The collection, storage, use, update etc of any type of personal information (defined in the Privacy Act), including sensitive personal information such as health information, is covered by the Privacy Act. Schools need to be aware of their responsibility and accountability for all personal information that they collect, store, use and eventually destroy. Privacy considerations must be balanced against the school’s duty of care to staff, students and others affected by the school’s activities in terms of who needs to know what in order to eliminate or minimise the risks to health and safety.
There are a number of pertinent queries for schools to consider regarding the collection and use of staff and sensitive personal information. They include:
- Can you ask your staff to provide immunisation/health records that are sensitive personal information?
- Is the collection and storage of this type of personal information considered to be an essential part of your overall operational procedures?
- If there is an outbreak of COVID-19, how much information do you provide to staff (and the rest of the school)?
- Are you aware of any staff who may be particularly susceptible to COVID-19?
Recently, according to the ABC and a wide variety of news media outlets, Alan Joyce, CEO of QANTAS has been quoted as saying:
“We are looking at changing our terms and conditions to say for international travellers, that we will ask people to have the vaccination before they get on the aircraft.”
According to abcNEWS, Korea's largest airline has a similar message. It reports that Jill Chung, a spokesperson for Korean Air, said on Tuesday that there’s a real possibility that airlines will require that passengers be vaccinated. She said that this is because governments are likely to require vaccinations as a condition for lifting quarantine requirements for new arrivals. However, Ms Chung and other airline executives have noted that this should not be determined by the individual airlines, but by the governments of the country of origin and the country of destination.
The reality is that many governments may not allow international travel either into or out of their country without some form of risk management process such as vaccination for COVID-19. The Federal Government has said that the COVID-19 vaccine would not be mandatory in Australia, but it could become a condition of entry or re-entry to the country.
But what does this have to do with schools?
What Should Schools Be Doing?
Broadly speaking, currently schools do not have the force of law to insist that their staff are vaccinated against any disease, although governments may legislate or direct this by other means (e.g. health directives) once reliable vaccines become easily available. This was implemented in the aged care sector this year to prevent staff attending work unless they had a current (normal) flu vaccination (subject to very limited exceptions).
In the absence of any legislation or directives, consideration could be given to contractual means by making it a condition of employment (in the contract of employment rather than as a policy only) for any new staff. Legal advice may need to be obtained in terms of wording and how to enforce a breach. A requirement to be vaccinated may also be a condition of performing certain tasks, based on the school’s health and safety obligations, such as requiring school ‘first aiders’ to have a COVID-19 vaccination.
Schools that believe that vaccination for COVID-19 should be mandated for all staff, on the basis of workplace health and safety, may wish to read this article by Swaab. The authors, Michael Byrnes and Emily Capener, presented a recent unfair dismissal case regarding whether an employer (a childcare centre) could give a lawful and reasonable directive to its employees to receive a flu vaccination. One employee refused and was, subsequently, dismissed. The case was dismissed due to being out of time. However, the authors go on to ask if employers can mandate that their employees be vaccinated and respond with:
“The answer to this question will (as always) depend on the circumstances of the case and whether, in those circumstances, the direction from the employer to the employee to be vaccinated for COVID-19 is 'lawful and reasonable'.”
If particular staff are vaccinated against COVID-19, or any other disease for that matter, then it would be advantageous for schools to know this as they can then provide a better level of duty of care for their staff. In the event of an outbreak of an infectious disease, those staff who have not been vaccinated may need to be moved or excluded from the workplace to minimise the risk to their health. If this happens, will any exclusion be on full pay, personal leave or any other type of leave? Schools will need to consider how they will monitor and manage staff health issues, if they cannot mandate either vaccination or require their staff to provide them with information relating to immunisation against COVID-19.
In another School Governance article we noted that the proper management of infectious diseases requires a policy with some key features. These include:
- clear guidelines for managing the diseases
- staff training on how to recognise infectious diseases
- instructions on how to notify the relevant health authorities, in compliance with any legal obligations
- maintenance of records of student and staff vaccinations.
A consideration in developing a COVID-19 vaccination policy is that under WHS/OHS/OSH legislation, workers must be consulted in any matter relating to their health and safety at work. It is possible that a reasonable policy may be developed (or may evolve) that addresses staff COVID-19 vaccinations, records of vaccinations, and use of that information that will be acceptable to the vast majority of staff. If there is no legislative guidance, or sensible option reached through consultation, schools may need to seek legal advice on this situation if this scenario arises.
However, if vaccinations are offered for free, or even on a user pays system, and they are arranged at the school during normal working hours, then there is likely to be a record created regarding who was vaccinated and against what. However, this is health information collected for the primary purpose of providing (or paying for) vaccinations, but then using this information to manage an outbreak raises issues under the Privacy Act relating to consent for secondary purposes. If staff are to be vaccinated at the school, it would be wise to have them sign off that they understand and agree to the potential uses of the information regarding the vaccination, which will include the management of that infectious disease should an outbreak occur.
As with most of the risks that have emerged since the COVID-19 pandemic first became recognised, the risks associated with staff vaccination and immunisation are also only now becoming apparent.
At the commencement of 2021, if not already done, schools are advised to have open and very frank discussions with their staff regarding how they could provide the highest possible level of duty of care for both their students and all of their staff and regular volunteers until this disease is finally able to be managed on a widescale basis.
Some schools may choose to do nothing other than what they currently do when dealing with infectious diseases, unless the law changes. They rely on the students, parents or staff to advise them if they have an infectious disease and then the school needs to follow its infectious disease protocols. Alternatively, some schools may encourage their staff to advise them of their vaccination status against COVID-19. Then they need to plan carefully to ensure that the sensitive personal information is stored and used as they and their staff agree.
A word of caution regarding either of these strategies. If there is a confirmed case of COVID-19 at your school and you then only move or send home the staff or students who are NOT vaccinated, this is essentially a communication to others of their health information. In this situation care must be taken to ensure that any possible negative reactions from colleagues which may cause harm (psychological, reputational, physical, financial or social) to the non-immunised individuals, will be satisfactorily managed. Failure to do so may constitute a notifiable data breach, which will involve the regulator (the Office of the Australian Information Commissioner) and subsequent penalties. However, failure to take measures to protect staff known to be unvaccinated will involve greater penalties under WHS/OHS/OSH laws, not to mention causing illness or even death of those individuals.
It is possible that all or most of the issues we have canvassed in this article may in the end be moot, as comments by state premiers and the record of very speedy responses to COVID-19 by the Fair Work Commission and state and federal legislatures may indicate that very clear rules in relation to COVID-19 vaccination in the workplace will be established.