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Mandatory Vaccinations for Aged Care Workers in a Covid era

Commercial Law, Employment Law

What does this mean for your employees and residents?

On 28 June 2021, the National Cabinet agreed that the COVID-19 vaccination of residential aged care (RAC) workers would become mandatory by mid-September 2021 and all RAC workers were 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 with a second dose on or before 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).

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.

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