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Aged Care Alert | Flu vaccination mandates in the aged care sector in 2022

Libby Pallot, Victor Harcourt, Anita Courtney, Matthew Goessler and Johanna Heaven

Residential aged care facilities

Whilst the current Commonwealth government has not made it clear whether they will mandate flu vaccinations in aged care in 2022, Victoria, South Australia, Western Australia and the Northern Territory have all introduced new mandates to varying degrees in respect of residents, visitors, employees and volunteers in residential aged care facilities. Other States and Territories have not elected to introduce mandates at this stage, but many recommend up to date flu vaccinations for people attending facilities.

This follows the Australia Health Protection Principal Committee’s ‘Statement on winter season preparedness’ which noted:

  1. all residents are strongly recommended to receive an influenza vaccination,
  2. aged care workers are strongly encouraged to be vaccinated against influenza; and
  3. visitors are strongly recommended to receive an influenza vaccine.
Below is a summary of the current rules in each State and Territory as they apply to flu vaccinations in aged care (including a link to the relevant directions or guidelines):

State/Territory

Residents

Visitors

Employees

Volunteers Mandate Effective

Victoria

Up to date influenza vaccination not required Up to date influenza vaccination not required Up to date vaccination against influenza required for workers in residential aged care services operated by public health services by 15 August 2022 and annually thereafter Up to date influenza vaccination not required As of 8 April 2022

New South Wales

Recommended but not required Strongly recommended but not required Strongly recommended but not required Strongly recommended but not required

South Australia

Recommended but not required

 

Requirement to be vaccinated against 2022 seasonal influenza

 

Requirement to be vaccinated against 2022 seasonal influenza

 

Requirement to be vaccinated against 2022 seasonal influenza

 
As of 10 June 2022

Queensland

Recommended but not required Strongly recommended but not required Strongly recommended but not required Strongly recommended but not required

Western Australia

Recommended but not required Up to date influenza vaccination required, if available to person Required if available to person Required if available to person As of 23 March 2022

Tasmania

Strongly recommended but not required Strongly recommended but not required Strongly recommended but not required Strongly recommended but not required

Northern Territory

Up to date influenza vaccination required, if available to person Required if available to person Required if available to person Required if available to person As of 24 December 2021

ACT

Recommended but not required Recommended but not required Recommended but not required Recommended but not required

Exceptions

In some States and Territories a person may be exempt from obtaining a flu vaccination,
including if:

  • the person has a documented medical contraindication to the influenza vaccine; or
  • the health service has conducted a risk assessment and it is satisfied that it is safe for the worker to perform their role and that not employing the health care worker would result in a serious risk to patient care.

There is no clear statement as to what a vaccination being “not available” to a person means. In our view, this is likely to include circumstances where there is a limited supply of the vaccine, eg in a remote area, or if person has a medical contraindication to the vaccine. It is unlikely that religious or cultural grounds would make a vaccine “not available” to a person.

Additional obligations for residential aged care providers

Providers should be mindful of their obligations under the Quality of Care Principles 2014 and the Records Principles 2014, which require providers to have an influenza vaccination program in place which:

  • provides staff and volunteers access to free annual flu vaccination either on site or at a local chemist or GP;
  • actively promotes the benefits of an annual vaccination for their staff and volunteers, and for the health outcomes of care recipients; and
  • keeps a record of the number of staff that have the flu vaccination each year (whether or not under the provider’s flu vaccination scheme).

Residential aged care, home care and other administration employees not covered by a public health order

In the absence of a public health order, many factors indicate that an employer can issue a reasonable and lawful direction to require certain employees to provide evidence that they have received a flu vaccination in order to continue to work. For example, all direct care workers have personal contact with clients and, in the case of home care, possibly other household members and visitors who may also attend the workplace.

We expect that a vaccination direction to a home care worker would be lawful and reasonable because home care workers may spread the infection from one client to another and clients are often receiving services because they are vulnerable. It may also be appropriate to implement the same rule for other administrative based employees who have contact with direct care workers.

The Fair Work Commission has previously decided that, subject to implementing an appropriate process, a direction to home care workers to be vaccinated will be lawful and reasonable. Refusal to comply with it will be a valid reason for the termination of employment (see our previous Alert). However, it may not be reasonable to require a worker to be vaccinated if they will not have contact with vulnerable clients, or if they will not be at risk of spreading the virus. Often office-based workers who work from home may fall into this category of employees (Alexander James Marriott v Baptcare [2022] FWC 300 and Evelyn Paul v Ozcare [2022] FWC 1139).

It is extremely important to check all terms and conditions of employment, follow a proper process and obtain advice prior to issuing a direction to employees who are not covered by a public health order to be vaccinated against the flu.

How we can help

If you require further information or support, please contact Victor Harcourt, Libby Pallot, and Anita Courtney.

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