Government position and Fair Work Ombudsmen Guidance note

Whilst it is the Federal Government’s aim to have as many Australians vaccinated as possible, the government has said it will not issue a broad mandate for all Australians to be vaccinated, whether in the workplace or otherwise.  Scott Morrison has said that employers have ‘already existing powers…in terms of lawful directions, reasonable directions to their employees’.  In some circumstances, it may be reasonable to require employees to have the COVID-19 vaccine in order to provide a safe working environment, as part of an employer’s duties under Work Health and Safety legislation. 

Many education settings for whom there is not an applicable public health order, and who cannot draw upon provisions within existing employment agreements or contracts, will be thinking about whether it is lawful and reasonable to issue a direction to their employees to be vaccinated against COVID-19.  This question will always be fact-specific depending on the particular circumstances of the workplace and workforce – the fact of the pandemic alone is not sufficient to justify such a direction. In order to help employers who are considering this issue, the FWO has recently issued some revised guidance.

To assist in this assessment, the FWO guidance suggests breaking down all types of work into four broad tiers, with a direction to employees performing Tier 1 or 2 work to be vaccinated against COVID-19 being more likely to be reasonable than a direction to Tier 3 or 4 employees:

• Tier 1 work, where employees are required to interact with others who are at an increased risk of being infected with COVID-19, such as border control workers;
• Tier 2 work, where employee are required to have close contact with others who are particularly vulnerable to the health impacts of COVID-19, such as healthcare workers;
• Tier 3 work, where employees interact or are likely to with other employees and others such as customers or the public, in the normal course of employment, such as stores providing essential goods/services;
• Tier 4 work, where employees have minimal face-to-face interaction as part of their normal employment duties, such as employees working from home.

How should the risk of the COVID-19 Delta Variant at schools be assessed?

Prior to the Delta Variant, it could be said that school employees are not necessarily at increased risk of being infected with COVID-19 (at least to the same degree as border control workers), nor required to have close contact with others who are particularly vulnerable to the health impacts of COVID-19 (compared to say health care workers in the aged care sector).  

However, recent times have seen that the Delta Variant is highly transmissible with even very short periods of contact, and there have been significant increased cases of transmission amongst children and young people causing the Victorian Government to recommend mask usage amongst children. In addition, the Victorian Government’s health.vic website has stated that children are often less likely to practise good hygiene, such as washing their hands.  Further, at this stage, the majority of school-age children are not eligible to be vaccinated.

In anticipation to when schools fully return onsite, it is therefore important for schools to re-evaluate the risks of infection of the COVID-19 Delta Variant in a school setting, and establish appropriate workplace health and safety policies and protocols.  Such an appropriate policy formulation may include:

• the particular nature of the workplace (for example, adequate ventilation and the extent to which other protective measures can be implemented such as social distancing);
• the extent and rate of community transmission of COVID-19 in the local area where the school is based;
• the risk of transmission among employees and the school community as a whole
• specific characteristics of the staff and student cohort that may increase the risks (for example, older workers or immunocompromised students or employees);
• each employee’s particular circumstances, including their duties and risks associated with their work;
• availability of the vaccine to relevant stakeholders; and
• any necessary workplace consultation required.

On the basis of such a review, schools will then be in a position to effectively institute appropriate policies and protocols such as monitoring the vaccination status of its workforce, supporting workforce vaccination rates and (where lawful and reasonable) staff directions to get vaccinated. 

Further information / assistance regarding the issues raised in this article is available from the author Nick Duggal, Partner or your usual contact at Moray & Agnew.