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Back to "Education Law Notes - Term 2 2022"


Moving from COVID-19 Vaccine Mandates to Risk Assessments in NSW Schools

In the last edition of the Notes, we wrote about mandatory vaccination under the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2022 (PHO) and some of the lessons that had been learned from dealing with staff members who decided not to be vaccinated.

The first PHO mandating vaccination for education and care workers was announced in August 2021 and took effect on 8 November 2021. The most recent PHO mandating vaccines commenced in March 2022 and was repealed on 13 May 2022. Accordingly, there is now no longer any statutory requirement that education workers be vaccinated.

This means that schools and early education facilities have moved to a risk-based assessment approach, like most other workplaces in the community.

For now, staff working at government schools are still working under a Determination issued by the Secretary of the Department of Education, which requires all employees to be vaccinated with two doses of a COVID-19 vaccine. This will remain in place until the end of Term 2, at which point the situation will be reviewed.

Where does this leave independent and Catholic schools in NSW? Should unvaccinated teachers be offered employment once again?

Dominic Perrottet, the NSW Premier, has encouraged teachers to come back to work in the classroom, stating that the mandates were not put in place to discriminate, but to ‘keep people safe’.

We know that vaccinations reduce both the transmission and severity of COVID-19. As such, vaccination will remain an effective control measure against the spread of the virus in workplaces, particularly where there is a higher risk of transmission.

Under the Work Health and Safety Act 2011 (NSW), schools have a duty of care to maintain a safe work place, not only for their employees, but also for all who attend the workplace, including contractors, volunteers and students.

To manage the risk of COVID-19, employers must take all reasonably practicable steps to minimise the risk of exposure.  Where there is no PHO mandating vaccination, the question of whether an employer can require an employee to be vaccinated turns on whether the direction is both lawful and reasonable, in the employee’s particular circumstances.

In a high-risk setting (which is likely to include classrooms where teachers are conducting face-to-face teaching), employers will generally still be able to require workers to be vaccinated.

However, this will require a risk assessment, taking into account factors such as the size of the classroom and what activities are taking place, how many children are in the classroom at any time, whether students are vaccinated and if there are any immunocompromised students, staff or even family members.

You will also need to take each teacher’s individual circumstances into account, such as where a teacher has a medical contraindication.

School leaders should now review their vaccination policy and consider what will work best for their school and community going forward.

While safety is always the paramount concern, there are also other risks to consider when employing unvaccinated staff, such as an increased risk of workers compensation claims. Recently, a NSW Court found an employer liable for an employee’s death as a result of COVID-19 contracted while travelling for work and we expect to see more COVID-19 workers compensation claims in the future.

If you need any assistance with your vaccination policy, please contact David Ford or Stephanie McLuckie.

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