Update – Vaccination mandate for schools

The Victorian government recently announced that COVID-19 vaccination is mandatory for school staff once in-person teaching resumes in term 4.

In this update, you will find information about the most recent government directions and key dates to ensure compliance in time for the resumption of teaching in term 4.

Key features of the government direction

The relevant government direction is the “Directions from Acting Chief Health Officer in accordance with emergency powers arising from declared state of emergency COVID-19 Mandatory Vaccination Directions (No 5)” issued on 2 October 2021. The direction applies to education providers who are:

• registered schools as defined under the Education and Training Reform Act 2006 (Vic); and
• onsite early childhood education and care services or children’s services provided under the Education and Care Services National Law, the Education and Care Services National Regulations, and the Children’s Services Act 1996 (Vic).

Under the direction, school staff must have had:

• their first vaccination by 25 October 2021; and
• their second vaccination by 29 November 2021.

By 18 October 2021, schools need to have collected the following information from staff:

• whether staff have received both doses of a COVID-19 vaccination; or
• whether they have received one dose of a COVID-19 vaccine and the date they have booked in to receive their second dose (which needs to be before 29 November 2021); or
• whether they have made a booking to receive their first COVID-19 vaccination, noting that this must be on or before 25 October 2021; or
• whether they cannot receive a COVID-19 vaccination because an exception applies to them and they have evidence from an approved medical practitioner certifying an exception applies to them.

If staff have not provided the above information by 18 October 2021, they will not be permitted on school grounds, and will need to be treated as though they are unvaccinated.

Additionally, if staff have not received their first dose by 18 October 2021 but have made a booking to receive their first dose by 25 October 2021, they will be permitted on site. If the person has not received their first dose by 25 October 2021, they will not be permitted on school grounds after that date.

Exceptions

The direction permits an exception to the vaccination requirement if a staff member has a medical contraindication, as determined by the clinical guidance issued by Australian Technical Advisory Group on Immunisation.1

If a staff member seeks to apply for an exception, the school must sight and record evidence from a specified list of medical practitioners:

• general practice registrars on an approved 3GA training placement;
• public health physicians;
• GPs;
• infectious disease physicians;
• clinical immunologists;
• gynaecologist;
• obstetrician;
• GPs who are vocationally registered;
• GPs who are a fellow of the Royal Australian College of General Practitioners; or
• GPs who are a fellow of the Australian College of Rural and Remote Medicine.

If a staff member refuses to be vaccinated and cannot provide the required evidence of a medical contraindication, they will not be permitted on school grounds from 18 October 2021.

The direction does not provide scope for an individual staff member to be granted an exception on any other grounds (including religious grounds). However, engaging in a proper and lawful process with any staff who raise a religious objection is important, so that the school can avoid later claims of discrimination and/or unfair dismissal.

There is scope for a temporary exception to be granted on the basis of an emergency for the limited duration of that emergency, if the staff member wears PPE including a surgical mask and a face shield (as a minimum).

Collecting vaccination information and privacy obligations

Schools are required to collect, record and hold information regarding each staff member’s vaccination status if they will or may be on school grounds from 18 October 2021.

An authorised officer may request a school to provide its vaccination records. The school will be required to comply.

Schools are required to communicate the vaccination requirements to affected staff members as soon as reasonably practicable. The information to be collected includes:

• whether each staff member is fully vaccinated; or
• if they are not fully vaccinated:
  • (i) the date they have booked to receive their first or second dose;
  • (ii) whether they intend to apply for an exception on the grounds of a medical contraindication; or
  • (iii) whether they do not intend to receive a COVID-19 vaccine.

Schools may accept the following information as evidence of vaccination status:

• Immunisation History Statement;
• digital certificate; or
• letter from a general physician.

Privacy considerations which apply to health information apply here. Including regarding storage, use, disclosure, security, access and archiving. The use or disclosure of staff vaccination information for an unauthorised purpose would attract serious penalties.

Responding to non-compliance

In the event a staff member does not comply with the government direction and does not have a medical contraindication, a school will be required to consider its options with respect to that staff member, including whether stand down, leave arrangements or other disciplinary consequences are available in the circumstances.

Considerations include:

• whether the school can reasonably accommodate alternate duties that can be completed off-site;
• whether the stand-down mechanism under the Fair Work Act 2009 (Cth) is available to stand the employee down without pay for a temporary period; or
• whether the termination of the staff member’s employment is a valid option and how the school may seek to minimse risks associated with termination.

This assessment will need to be conducted on a case-by-case basis with a careful examination of the duties of the staff member and the operational requirements of the school. Should you require assistance, Moores can help you through the process of making this assessment.

Penalties

Significant penalties apply if a school or staff member does not comply with the direction. An individual can face a fine of up to $21,808 (120 penalty units) and the school could face a fine of up to $109,044 (600 penalty units) for a single breach.

Additionally, if a person is found to have provided or recorded false or misleading information, an individual can face a fine of up to $10,904 (60 penalty units) and a body corporate may face a fine of up to $54,522 (300 penalty units).

How we can help

Moores can assist your school, including to:

• prepare a staff policy about COVID-19 vaccination requirements;
• understand its privacy obligation with respect to collection, use and storage of vaccination information;
• develop its procedures for dealing with medical exceptions and other grounds for exceptions made by staff; and
• prepare for dealing with staff non-compliance with the vaccination requirements.

Please contact us for more detailed and tailored help.