Legal Insights

Mandatory COVID-19 vaccinations in residential aged care

By Angela Wood & Sophie Vo

• 26 August 2021 • 8 min read

Further to our Employment, People and Safety Team’s recent article on employers mandating and incentivising COVID-19 vaccinations, our Healthcare Team has carefully considered the mandatory COVID-19 vaccination requirements for aged care workers that are due to commence in mid-September 2021.

On 28 June 2021, the National Cabinet agreed that the COVID-19 vaccination of residential aged care (RAC) workers will become mandatory by mid-September 2021. However, the mandate would be introduced in partnership with states and territories through public health orders (or other similar mechanisms).

To date, Western Australia, South Australia, Tasmania, Queensland, the Northern Territory and the Australian Capital Territory have published public health orders or directions to mandate the vaccination of RAC workers by mid-September. New South Wales and Victoria are expected to finalise their public health orders and directions soon. However, New South Wales Health has announced that from 30 August 2021, it will require RAC workers who live in an ‘area of concern’ and work in a RAC facility outside the area of concern to receive at least one dose of a COVID-19 vaccine to be able to attend work (subject to specific exceptions). Although the Victorian Department of Health has not published its directions, it has notified providers that they need to ensure workers are vaccinated by 16 September 2021.

The mandatory COVID-19 vaccination framework is summarised below, but RAC providers should carefully consider the formal public health orders and directions applicable to them in each of the relevant states and territories that their facilities operate. The states and territories are responsible for finalising the mandates in their own jurisdictions and for managing compliance.

What is the mandatory COVID-19 vaccination requirement?

All RAC workers are required to receive a minimum first dose of a COVID-19 vaccine by 16 or 17 September 2021 (depending on the state or territory) to be able to work at a RAC facility.

Note that some states require evidence of booking the subsequent dose(s) of the COVID-19 vaccine as well. This is the case in Queensland, for example, which has set an additional deadline for workers having received all required doses by 31 October 2021.

Who must be vaccinated?

The scope of RAC workers for mandatory COVID-19 vaccinations that is endorsed by the Australian Health Protection Principal Committee (AHPPC) includes:

  • anyone employed or engaged by a RAC facility who works on-site in a facility, such as:
    • direct care workforce (including nurses, personal care workers, allied health professionals and allied health assistants)
    • administration staff (including reception, management, administration)
    • ancillary staff (including food preparation, cleaning, laundry, garden and maintenance)
    • lifestyle / social care staff (such as for music/art therapy)
    • transport drivers collecting residents from RAC facilities for outings
  • volunteers engaged by the RAC facility
  • students on placement, and
  • medical practitioners, such as general practitioners and consulting specialists, who attend and provide care to residents.

While other workers who may attend RAC facilities, but are not directly employed by the facility, are not required to have received their first dose of a COVID-19 vaccine, this is strongly recommended by the Department of Health.

RAC providers may wish to incentivise both employees, and in-reach or contracting workers to receive the COVID-19 vaccine.

Are there exemptions from the mandatory vaccination requirements?

There are a narrow set of exemptions from the mandatory COVID-19 vaccination requirement in aged care, including where:

  • the person has a medical exemption
  • an aged care worker can demonstrate that every effort has been made to access a vaccination by the deadline, but that they were unable to due to supply or access limitations
  • there is lack of availability of a visiting specialist who is vaccinated (which may compromise clinical care), and
  • compliance would undermine the quality of care available to residents.

While the Department of Health’s view is that it is unlikely for states and territories to also take into account religious, political and personal grounds, this is available to the individual jurisdictions and would be formalised in public health orders or directions. Of the six published public health orders and directions, we have not seen any that expressly refer to such grounds. However, the Northern Territory’s directions broadly state that, ‘A person is not guilty of [an] offence if the person has a reasonable excuse’ without specifying any such exemptions or excuses.

Who will be held responsible for non-compliance with the mandatory COVID-19 vaccination requirements?

While individuals are personally responsible for complying with the mandatory COVID-19 vaccination requirements, RAC providers must also take reasonable steps to ensure non-compliant RAC workers do not enter and remain at their RAC facility. Penalties apply for individuals and body corporates.

Reasonable steps would include asking employees for proof of their vaccination status (or exemption).

How would RAC providers check the vaccination status of their employees?

At present, all six published public health orders and directions expressly require the RAC worker to provide evidence of their vaccination status, for example, where there are such public health orders and directions, the worker’s provision of their vaccination status is no longer voluntary. Some of those orders also require the providers to keep copies of their workers’ evidence of the vaccination(s). In our view, this may be necessary in any event for providers to demonstrate their compliance with the public health orders.

The weekly recording and reporting requirements concerning COVID-19 vaccinations statuses among staff and residents continue to apply to RAC providers who must ensure the collection and handling of this health information is treated in accordance with applicable privacy laws.

We previously covered the recording and reporting requirements as well as privacy tips (see here and here).

At this stage, in the absence of a government endorsed App to verify vaccination status, providers may have concerns about being provided with false records. Providers should indicate to their workers that falsifying vaccination details will be taken seriously and addressed through their disciplinary processes.

Can RAC providers incentivise RAC workers (and others) to have a COVID-19 vaccination?

Although there are strict requirements related to the promotion of COVID-19 vaccines (known as ‘restricted representations’), RAC providers may lawfully communicate about COVID-19 vaccines to RAC workers, contractors and visitors in the following ways:

  • providing purely factual and balanced information (in a manner that does not advertise or promote the vaccines)
  • sharing material produced by the government as part of a Commonwealth, state or territory health campaign, without amending that information
  • producing its own advertising material to promote COVID-19 vaccinations (subject to strict limitations), and
  • offering cash or other rewards to those who are fully vaccinated against COVID-19 (subject to strict limitations).

In the above communications, the RAC provider must not promote a specific COVID-19 vaccine by naming it and must not compare the available vaccines.

Read more on communicating about COVID-19 vaccines here.

Can RAC providers direct RAC workers to have a COVID-19 vaccination before a public health order or direction is published?

Our Employment, People and Safety Team has published a comprehensive article that sets out the current position on an employer’s power to direct an employee to have a COVID-19 vaccination.

The article refers to four broad tiers of types of work as designed by the Fair Work Ombudsman’s Guidance. A direction to vaccinate to a Tier 1 or Tier 2 worker would likely be reasonable given the risk of infection or transmission to and among those groups of workers.

While it is likely that aged care workers would fall into Tier 2, given they are required to have close contact with people who are particularly vulnerable to the health impacts of COVID-19 and must be vaccinated by mid-September, RAC providers should undertake a case-by-case assessment to take into account its workplace, its workers and the nature of the work they perform.

For example, where an allied health worker attends a RAC facility on a regular basis, but the worker has a legitimate reason for not being vaccinated, such as a medical contraindication, it may not be reasonable to direct the worker to be vaccinated.

You can refer to the Fair Work Ombudsman’s updated guidance on COVID-19 vaccinations in the workplace here.

Require further guidance on mandatory COVID-19 vaccinations?

Get it touch with our Healthcare team.

By Angela Wood & Sophie Vo

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