Legal Insights

Observations about the mandatory COVID-19 vaccination requirements in aged care

By Angela Wood & Sophie Vo

• 02 December 2021 • 5 min read
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We provide an update on the mandatory COVID-19 vaccination frameworks in residential aged care

Since our last update on the mandatory COVID-19 vaccination requirements in residential aged care (RAC), the requirements have commenced across all states and territories, restricting the entry into a RAC facility to RAC workers (whether they are employees, contractors or agency staff) who have been vaccinated against COVID-19. As at 15 November 2021, the Department of Health reported that 99.8% of RAC workers nationally have received their first dose of a COVID-19 vaccine and 96.9% are fully vaccinated.

On 5 November 2021, a national framework for mandatory COVID-19 vaccination requirements was also recommended for in-home and community aged care workers, with a 30 November 2021 deadline for the first dose and 31 December 2021 deadline for the second dose. However, before this recommendation, five out of eight of the Australian states and territories had already introduced such vaccination requirements, with the remaining following suit after the recommendation.

We have made the following observations while assisting aged care providers manage their obligations under the public health orders and directions:

There is a tailored approach for each state and territory

Although the mandatory vaccination frameworks were agreed at a national level, the states and territories are responsible for making and enforcing the relevant public health orders and directions within their jurisdictions. The consequence is that there is variability in the scope of the requirements across the states and territories.

Examples of different approaches:

  • For RAC, there are variations in the requirements for in-reach health practitioners, such as pharmacists and allied health professionals, who are engaged directly by a resident (and not the RAC provider) across the states and territories. In some states and territories, they are generally excluded from the RAC COVID-19 vaccination requirements. In Victoria, the definition of ‘RAC facility worker’ includes medical practitioners, dental practitioners and allied health professionals who are employed or engaged by a resident directly. In NSW and Queensland, there are other requirements that apply to health practitioners more generally, whether or not they are engaged by a RAC provider.
  • Some of the public health orders or directions for RAC only set a mid-September 2021 deadline for one dose of the COVID-19 vaccine, while others have also set a deadline for the second dose of the vaccine (mostly at the end of October 2021). However, these differences in deadlines appear negligible now that significant numbers of RAC workers are fully vaccinated.

There are complex interactions between different public health orders or directions

Organisations are required to be aware of the way the mandatory COVID-19 vaccination requirements interact with other public health orders or directions.

Moreover, a worker who is not within the scope of one particular public health order or direction, may fall within the scope of another public health order or direction. For example, a worker may not be a ‘RAC facility worker’ for the purposes of the mandate on vaccines for RAC, but their relevant state or territory may have mandates for health workers generally.

Both individuals and organisations are responsible for complying

While individuals are personally responsible for complying with the vaccination requirements that are applicable to them, organisations are ultimately responsible for ensuring their workers comply and for restricting entry of unvaccinated persons onto their premises. The Public Health Orders and directions consistently state that organisations must take all reasonable steps to ensure compliance.

The aged care recording and reporting obligations were amended to account for mandatory COVID-19 vaccinations

The obligation for RAC, in-home and community care providers to record their workforce COVID-19 vaccination status and report weekly on the de-identified data to the Australian Government Department of Health, continues to apply. The Accountability Principles 2014 and Records Principles 2014 have been amended to:

  • account for vaccination status information that is not necessarily obtained ‘voluntarily’, but as the result of a requirement under a law of a state or territory (thereby recognising the information that will be collected as a result of the mandatory COVID-19 vaccination requirements), and
  • provide for an additional level of data, being the number of workers who are exempted from receiving a COVID-19 vaccine or excluded from the scope of the mandatory vaccination requirements.

To read more about the recording and reporting requirements, see our previous articles (here and here).

It helps to have clear systems and processes in place

Because the COVID-19 vaccination requirements involve complex public health, privacy and employment issues, we have recommended that organisations (in and outside the healthcare sector) implement steps to ensure that their systems and processes for notifying staff and collecting, storing and keeping health information, comply with legal requirements, including:

  • Implementing COVID-19 vaccination policies with input from employment law experts.
  • Developing procedure or guidance documents to assist staff with collecting and handling COVID-19 vaccination status information. This is particularly important, as privacy issues do not end after the collection of personal information, but should be appropriately handled throughout the stages of its lifecycle, such as determining when the information is no longer needed, and should therefore be destroyed or de-identified. See our article on ‘The COVID-19 vaccination information life cycle’.
  • Creating template privacy collection notices and consent forms to notify an individual of privacy matters in accordance with Australian Privacy Principle 5.

By Angela Wood & Sophie Vo

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