COVID-19 | Mandatory vaccination in the education sector in Victoria

1 October 2021
Steven Troeth, Partner, Melbourne
Updated as at 8 October 2021

Directions have been made by the Acting Chief Health Officer making mandatory COVID-19 vaccinations a requirement for staff to work in schools (including school boarding premises), childcare and early childhood services in Victoria.

Who do the Directions apply to?

The Directions apply to ‘education operators’, being those who own, control or operate an education facility – a childcare or early childhood service, a school and school boarding premises.

The Directions also apply to ‘education workers’, who include:

  • any person who is employed by an education operator to work in an education facility (including teachers, early childhood educators and educational support staff);
  • any person contracted to work at an education facility and who will or may be in close proximity to children, students or staff, whether or not they are engaged by the education operator (including CRTs, IT personnel, NDIS providers and auditors, but does not include delivery personnel);
  • staff of any other entity who attends an education facility;
  • volunteers that attend an education facility and that work in close proximity to children, students or staff (including parent helpers); and
  • students on placement.

Employer obligations

Schools and early childhood centres must inform each worker who is, or may be, scheduled to work at the education facility on or after 18 October 2021 that they must collect, record and hold the following vaccination information about the worker’s vaccination status as one of the following:

  1. fully vaccinated – the person has received two doses of a COVID-19 vaccine; or
  2. partially vaccinated – the person has received one dose of COVID-19 vaccine and is not an excepted person – and whether the worker has a booking to receive a second dose by 29 November 2021; or
  3. unvaccinated – the person has not received a dose of a COVID-19 vaccine and is not an excepted person – and whether the worker has a booking to receive a first dose by 25 October 2021; or
  4. an excepted person – see below.

Workers are not required to provide education operators with any of the information that the Directions require those operators to request. However, education workers who do not provide the required information by the specified dates will not be permitted to enter, or remain on your premises for the purpose of working. This may also have consequences for their ongoing employment if they are employees.

Preventing access to premises

Education operators must take all reasonable steps to ensure that, on or after 18 October 2021, a worker who is unvaccinated does not enter, or remain on, the education facility for the purposes of working. However, an unvaccinated worker may be permitted to attend for work between 18 October and 25 October 2021 if they have a booking to receive a first dose by 25 October.

Workers will also have to be fully vaccinated by 29 November 2021 to be permitted entry to the workplace for the purpose of working.

Excepted persons

A worker will be an ‘excepted person’ under the Directions if:

  • the person holds certification from a medical practitioner that the person is unable to receive a dose, or a further dose, of a COVID-19 vaccine due to a medical contraindication; or
  • the person holds certification from a medical practitioner that the person is unable to receive a dose, or a further dose, of a COVID-19 vaccine due to an acute medical illness (including where the person has been diagnosed with COVID-19).

The Directions do not provide a definition or examples of what would amount to an acute medical illness. It seems that this will be left to the expertise of the relevant medical practitioner.

A certification in relation to an acute illness will be effective until the earlier of the date specified by the medical practitioner or the date six months from the date the certification was given by the medical practitioner.

A medical contraindication is a specific contraindication to the administration of a COVID-19 vaccine that is outlined in the Directions. It includes:

  • anaphylaxis after a previous dose;
  • anaphylaxis to any component of the vaccine; or
  • the occurrence of any other serious adverse event that has been attributed to a previous does of a COVID-19 vaccine by an experienced immunisation provider or medical specialist (and not attributed to any other identifiable cause) and has been reported to the relevant authorities.

The Directions also list specific reactions to named COVID-19 vaccines that will also amount to a medical contraindication.

There is no exemption under the Directions for employees to object to vaccinations on religious grounds or because of their personal views about vaccinations.

Keeping records

Education operators must keep the necessary records to demonstrate compliance with the Directions, including records of the vaccination information that they have collected. The Directions note that vaccination information may be recorded in a variety of documents, such as a letter from a medical practitioner, a certificate of immunisation or an immunisation history statement obtained from the Australian Immunisation Register.

Education operators will also be required to provide access to these records to an Authorised Officer under the Public Health and Wellbeing Act 2008 (Vic) if requested to do so to demonstrate compliance with the Directions.

Steps required to be taken by schools and early childhood centres

We recommend that education operators take the following steps as soon as practicable to ensure that you are complying with the Directions, to keep your workers fully informed of what they are being requested to do and to appropriately manage the personal information that will be collected from your employees:

  • inform your workers as soon as practicable of the information and evidence that you are required to request them to provide by 18 October 2021 and that the Directions oblige the education operator to take all reasonable steps to ensure that, on or after 18 October 2021, a worker who is unvaccinated does not enter, or remain on, your premises for the purposes of working (unless they have a booking for a first dose by 25 October 2021);
  • publish a COVID-19 Mandatory Vaccination Policy to assist you to comply with the Directions and to inform your employees of the requirements of the Directions;
  • consider setting up a dedicated page on your intranet or staff portal in relation to mandatory vaccination on which to publish your policy and other information and resources for your employees;
  • consider publishing a series of Frequently Asked Questions to assist in managing the expected bombardment of questions you will receive from your workers; and
  • review your record keeping protocols and ensure that the personal information being collected from your workers is secure and accessible only by those who need to know, such as your HR staff who are managing the process of collecting and recording the information.

Education operators should also refer to the full terms of the relevant Directions to ensure they comply with their obligations – COVID-19 Mandatory Vaccination (Specified Facilities) Directions (No 6).

Gadens is able to assist you with all of these steps and with any queries you may have in relation to your obligations under the Directions.

For details of all our COVID-19 tips and updates, visit the Gadens COVID-19 Hub.

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Authored by:

Steven Troeth, Partner
Claire Duggan, Associate

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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