In 2016, the Victorian Government introduced the ‘no, jab, no play’ vaccination policy for child care and kindergarten. Was this a precursor to today’s debate?
This compulsory vaccination policy meant the only exemption from a vaccination for children attending child care or kindergarten was on medical grounds. The ‘conscientious objector’ loophole was closed at the time by changes to education and care laws.
The introduction of the 2016 ‘no jab, no play’ vaccination policy was accompanied by much community debate around the importance of high immunisation to establish ‘herd immunity’. A catalyst for the policy was an increase in outbreaks of whooping cough and measles.
To complement ‘no jab, no play’, the Federal Minister for Education and Training introduced ‘no jab, no pay’, meaning the Child Care Subsidy and other childcare payments are only paid to parents whose children are fully immunised.
What does this mean for the COVID-19 vaccination in child care and schools?
It is unclear if, in the future, the COVID-19 vaccines may be added to the list of required immunisations for child care. The current vaccines required of four year olds by the Department of Health includes:
- Whooping cough (pertussis)
- Chickenpox (varicella)
How might education staff be affected by a vaccination policy?
A number of independent schools are openly promoting COVID-19 vaccination to teachers and other staff. Some will offer the convenience of vaccination to staff on campus, recognising that avoiding lockdowns and spending more time in classrooms with students is likely beneficial to education and development of young people.
Offering access to the vaccine is unlikely to cause any problems for a school, but mandating a vaccination might be a different story.
The recent announcement by major food manufacturer, SPC, which set out that it will mandate vaccinations for its employees, has spurred significant discussion and debate about what employers could, can or should do. While there is some guidance emerging from regulators and even the federal government, many employers, including schools, are uncertain about how to approach vaccinations and their workforce.
It is certain that there will be continued focus on this issue in the coming months with close attention paid to the legal challenges to employers who mandate COVID-19 vaccination. In the absence of government directives or regulation, it will be up to employers to balance competing considerations, including safety risks, in order to assess if mandating vaccination is lawful and reasonable, and therefore defensible, in the employer’s specific circumstances.
Chair of WorkSafe Australia, Ms Diane Smith-Gander, has said businesses where social distancing is difficult such as supermarkets probably have legal backing to mandate vaccinations.
Taking a slightly different approach, NSW Premier Gladys Berejiklian is considering a plan to allow fully vaccinated employees back to work earlier than those who are not. It is unclear how this policy would work practically in an education environment where certain staff to student ratios are required for supervision and duty of care.
Managing parent expectations in the playground
Many schools are considering the practical arrangements regarding mask wearing and social distancing, considering key interactions between parents and parent presence on campus, including at after school pick up and when entering buildings.
In uncertain times, fear and anger can be elevated. Parents may have certain expectations around vaccination of staff, or the behaviour of those on campus regarding social distancing or mask wearing. Others might be opposed to certain COVID measures. It can be a difficult task for schools managing varying expectations.
Clearly communicate the expectations of the school regarding behaviour. The Victorian Government’s Operations Guide provides some expectations and limitations of COVID-safe behaviour. For example, it requires all parents and carers who enter school buildings to use a QR code check-in system, however, QR check-in is not required when parents or carers come onto school grounds for drop off or pick up, but do not enter buildings.
COVID-19 and your cancellation policy
Does your school facilitate events and sell tickets? Perhaps you organise a school concert or speech night? Or a charity gala or ball?
When facing uncertainty in the era of COVID-19, it is important to reflect on your dealings with community members, stakeholders and consumers and ensure your practices meet the standards of the Australian Consumer Law.
Guidance published by the Australian Competition and Consumer Commission (ACCC) confirms that when an event is cancelled due to government restrictions, it is unlikely the consumer (likely parents) will be entitled to a refund under the Australian Consumer Law.
Instead of a refund, you may agree to provide another remedy, such as providing a partial refund, a credit note, gift certificate or voucher, or postponing the event until a later date.
Particularly relevant obligations of the Australian Consumer Law to cancellations caused by COVID-19 are:
- to not mislead consumers, including about what the consumer is entitled to under their terms and conditions;
- to not act unconscionably when dealing with their consumer; and
- to not seek to rely on unfair terms in standard form contracts with consumers.
This means refund or cancellation policies, or terms and conditions, for example, applicable when a school sells tickets to events, may need to be reviewed.
How we can help
With extensive experience helping education clients navigate tricky issues, we approach questions regarding COVID-19 with vigour and enthusiasm, ready to help you meet these emerging challenges.
Moores also has a strong workplace relations team who deliver workplace and industrial relations in commercial and for-purpose sectors, such as education and disability.
Please do not hesitate to contact us.