‘Expectation’ to wear masks indoors and recent changes to the requirements to manage COVID-19 in schools

Expectations for staff and students to wear masks indoors at school

The Department of Education released an updated School Operations Guide on 18 July 2022 setting a non-mandatory expectation that staff and students over the age of 8 will wear masks indoors at school. Exceptions to the recommendation apply to teaching circumstances when clear communication or when a particular activity requires the removal of a mask.

This guidance does not impose a requirement, but requires schools to document their policy, and consider what means are at their disposal to require compliance and ensure they meet their duty of care and occupational health and safety obligations. Schools should have current risk assessments to support not only this expectation but also any firmer requirements which might exist due to vulnerabilities in their school community.

While the Department of Education has not issued separate guidance for specialist schools, it may be more reasonable for a mask requirement to be imposed in the unique context of specialist schools where a risk assessment has identified students as being more vulnerable to the transmission of COVID-19.

Recent changes to the Victorian Government’s Pandemic Orders

Following the decision in late June 2022 to wind back vaccination requirements for workplaces including schools, on 12 July 2022, the Victorian government released another update to its Pandemic Orders. Pandemic (Workplace) Order 2022 (No 10) (Order). The Order sets out requirements that educational facilities must meet in their approach to managing the transmission of COVID-19 in schools.

Those requirements include:

  • Preventing a worker from attending the school if they are waiting on the result of a PCR test and 7 days have not passed.
  • Wearing face masks if required by the Pandemic (Public Safety) Order 2022 (No 3) (Public Safety Order) and displaying signage to reflect this requirement. This requires schools to monitor any amendments to the Public Safety Order in addition to considering the operational guidance issued by the Department of Education discussed above.
  • Having a COVIDSafe Plan in place covering record keeping obligations, PPE, actions the school has taken to mitigate the risk of COVID-19 transmission, processes to respond to confirmed cases and symptomatic persons. Schools must document and record relevant evidence regarding the implementation of the COVIDSafe Plan and direct managers to do same.
  • Notifying parents, guardians and carers of students enrolled at the school (during the relevant infectious period) if the school becomes aware that a diagnosed person or probable case attended the school.
  • Recording and storing information regarding:
    • the date/s on which the school was notified that a diagnosed person or probable case attended the school; and
    • the date/s on which the diagnosed person or probable case actually attended the school during their infectious period.
  • Taking specific steps to respond to a symptomatic person who attended school premises 48 hours prior to onset of symptoms, including:
    • Not requiring the symptomatic person to work on school premises.
    • Advising the symptomatic person to comply with testing requirements.
    • Maintaining appropriate records to support contact tracing if required (such as rosters and worker details).
    • Informing all workers to be vigilant about COVID-19 symptoms and remind them to comply with testing requirements.
  • Taking specific steps to respond to a diagnosed person who attended school premises, including:
    • Directing the diagnosed person not to attend school premises and advising them to self-isolate.
    • Directing any worker on school premises to travel home immediately and provide them with support to do so. If they are unable to travel home immediately, then schools are required to direct workers to self-isolate on school premises, wear a face covering and remain at least 1.5m from other persons until they can travel home.
    • Taking reasonable steps to notify other workers who attended school premises during the diagnosed person’s infectious period that a diagnosed person has attended the workplace.
    • Informing all workers to be vigilant about COVID-19 symptoms and remind them to comply with testing requirements.
    • Notifying the Department of Health if more than 5 confirmed cases attended the work premises within a 7 day period by completing an Outbreak Notification Form.

We note that additional requirements (including mandatory vaccination requirements) continue to apply to specialist schools and disability workers working in education.

Holding vaccination information

The Order also provides some relief to schools who intend to continue to hold vaccination information collected in compliance with previous Pandemic Orders. It confirms that, if a “regulated employer” captured under the Pandemic (Workplace) Order (No. 8) was required to collect, record or hold vaccination information under a revoked Pandemic (Workplace) Order, they are authorised to hold that information.

This means schools can continue to hold vaccination information, and do not need to reassess their obligations under privacy law – for now. The relevant privacy law obligation is the requirement to delete or de-identify personal (and health) information when it is no longer needed.

Under the new Order, government schools are no longer authorised to collect new vaccination information. What information independent and Catholic schools can collect about vaccination status will depend on their Privacy Policy and Vaccination Policy, and the privacy obligation to collect health information in a manner that is fair and not unreasonably intrusive.

Non-government schools can continue to impose mandatory vaccination requirements

Although government schools are unable to continue to impose a vaccination requirement for staff, non-government schools can decide to continue to impose a mandatory vaccination policy. There are a number of considerations required ahead of introducing such a requirement including an assessment if the requirement is reasonable, whether consultation obligations apply under the relevant industrial instrument ahead of introducing the requirement and the preparedness to deal with non-compliance and take disciplinary action.

Additional protections regarding the ongoing collection and storage of newly collected vaccination information for non-government schools are provided under the Occupational Health and Safety Amendment (COVID-19 Vaccination Information) Regulations 2022 (Vic) (Regulations). The Regulations provide non-government schools with the power to continue to collect, record, hold, and use COVID-19 vaccination information from employees, contractors, or volunteers in their workplace for a period of 12 months from 12 July 2022 (noting this date may change).

How we can help

Please get in touch with the Moores team if your school requires further advice or assistance in relation to mask requirements, COVID-19 response plans or vaccination issues.

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