On 30 November 2021, Queensland’s Premier has announced that all staff employed by a school will need to receive their first vaccination against COVID-19 (if not already vaccinated) before 17 December 2021 and their second vaccination by 23 January 2022.
On 11 December 2021, the Chief Health Officer published the ‘COVID-19 Vaccination Requirements for Workers in a high-risk setting Direction’.
The requirements apply to educational settings including schools and outdoor education facilities, as well as airports, early childhood centres, correctional centres, and youth detention facilities. It is imperative that employers impacted by the Direction understand their obligations in respect of them and comply accordingly.
This article seeks to provide some general answers to frequently asked questions in light of this announcement. If you need tailored advice specific to your situation, please contact our business development team on (07) 3252 0011 to make an appointment with one of our employment lawyers.
Do all staff-members need to comply with the mandate?
The short answer is yes. The mandate applies to all “workers” in a “high risk setting”.
A “worker” is defined within the Direction and includes a person who is employed on a part-time, casual or full-time basis. It also extends to volunteers and contractors delivering services. It also applies to board members attending the high-risk setting (i.e. unvaccinated board members may only participate in meetings off-site or virtually). .
A “high risk setting” includes early childhood, primary and secondary educational settings including schools and outdoor education facilities, OSHC, vacation care and kindergartens.
What is a co-located setting and how does the mandate apply?
The direction does not apply to workers in settings that are not co-located within a school. Co-located means the use of shared facilities and where staff and users of the high-risk setting move freely between the co-located functions or settings.
An example of a co-located setting is where a regional high school and a TAFE are co-located in a regional town. The TAFE educators and the high school teachers share workshops and common areas, the workers in the co-located TAFE must comply with the vaccination requirements.
An example of a setting that is not co-located is where a part of a school’s grounds is fenced off while construction of a gym is undertaken. While the construction work progresses, school and staff and students are excluded from the construction site and the construction company has control of the site. The workers in this case would not be subject to the COVID-19 vaccine requirements.
Does this mandate extend to our students and their parents?
The direction does not apply to students and parents (aside from when parents are providing services as a “worker”). By way of example, an unvaccinated plumber must comply with the mandate in order to work on a school; however, he/she may attend parent activities at the school in their personal capacity.
Does the mandate apply on weekends?
Whether the mandate applies on weekends depends on whether the “worker” is providing services for or to the school. Otherwise, where a school is not occupied by users (i.e. students) or workers of the high risk setting, the COVID-19 vaccination requirements do not apply.
By way of example, if a school hall is hired out on the weekend for taekwondo lessons, the taekwondo instructor does not need to comply with the mandate. Further, a church that meets on school grounds may still proceed on the weekend without the need to comply with the mandate.
What exemptions apply for workers to receive the vaccine?
The Direction helpfully sets out six exemptions for workers to comply with the COVID-19 vaccination requirements. These are as follows:
- Medical contra-indication – this means a temporary or permanent contraindication that is notified to the Australian Immunisation Register (AIR) by an eligible health professional.
- Clinical Trial – this means a medical trial for a COVID-19 vaccine under either the Clinical Trial Notification or Clinical Trial Approval schemes regulations by the Therapeutical Goods Administration.
- Responding to Critical Workforce shortages (where a school considers this necessary while arrangements are put in place to arrange for a vaccinated worker- maximum of one month);
- Responding to Critical Support Needs (where a school considers this necessary for providing support to a student for mental health or well-being and for legal or advocacy services
- Emergency Entry to High Risk Settings.
- Entry to high risk settings for law enforcement.
We note that generally, where an exemption applies, a worker may still need to arrange for a PCR test prior to the commencement of each shift (it is sufficient if the results of the test are not known until after the commencement of the shift). Personal Protective Equipment (such as a mask) is also generally required.
What about discrimination arguments?
A worker will only be exempted from complying with the mandate should one of the above exemptions apply. Recent decisions of the Courts and Commissions over the last few months are making the position regarding exemptions a bit clearer. Indeed, many employees have lodged exemption applications in various Courts and Commissions on the basis of religious or political grounds., however these applications have been unsuccessful to date.
What if a worker chooses not to comply?
Failure to comply with the mandate (without a permitted exemption as outlined in the Direction) may be considered a valid reason for disciplinary action. Schools may also wish to consider other alternatives available, such as redeployment to roles not covered by the vaccine mandate (if any), work from home options or other adjustments that may be reasonable in all the circumstances.
Schools may also be entitled to stand an employee down with or without pay. Although, such steps are subject to the terms of employment and otherwise need to obtain the staff-member’s consent.
What record keeping requirements does the school have?
The direction helpfully sets out the requirements of schools in respect of recording COVID-19 vaccination information. An employer under this direction must, “keep a record of the COVID-19 vaccination status, the type of proof of COVID-19 vaccination, evidence of a medical contra-indication, or evidence of being a COVID-19 vaccine trial participant for each worker”.
We consider that best practice would be to receive or sight evidence of an employees’ vaccination status (e.g., vaccination certificates) and/or keep an up-to date register of vaccination status. It is important that schools ensure that it’s method of collection and storage of this information is in accordance with privacy laws.
Do schools need to enforce the mandate?
A school’s non-compliance with the Public Health Order may carry significant pecuniary penalties. It may also draw the attention of the Non-State Schools Accreditation Board (NSSAB) and carry risk from a workplace health & safety perspective.