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Retirement living and the COVID-19 pandemic: 10 legal tips for retirement living operators

Donna Rayner, Rosemary Southgate, Anita Courtney & Melanie Tan

Following the World Health Organisation’s declaration that COVID-19 is a global pandemic, the Australian Governor General also recently made a declaration under the Biosecurity Act 2015 (Cth) that a human biosecurity emergency exists in Australia.  Unfortunately, COVID-19 cases in Australia continue to rise and this will present significant ongoing challenges to the retirement living industry for months to come.

Retirement living operators who fail to adequately manage the risk may face legal and/or regulatory action, and risk long-term reputational damage in a highly-charged socio-political climate. 

As retirement villages are governed by their respective State or Territory retirement village legislation, operators should be aware that Federal Government directions relating to aged care do not apply to villages. Rather, operators will need to look to Federal Government directions that apply to the general public and any relevant State or Territory (as the case may be) government orders/directions. For example, all States and Territories have declared a state of emergency pursuant to their relevant Health Act.

If you do operate an aged care facility please see our recent COVID-19 Alerts from our Aged Care Team here.

We set out below some tips which retirement village operators should consider.
1. Stay on top of the communications from the authorities

It is imperative retirement living operators stay on top of Alerts being issued by regulatory authorities, including the Federal Government, Federal and the relevant State or Territory Department of Health. Government directions and recommendations continue to develop daily, and no doubt will continue to do so indefinitely.

For example, the Premiers of Victoria and New South Wales have indicated they intend to implement a shutdown of all non-essential activity across their respective states over the next 48 hours.

2. Communications with employees, residents and families

Operators will need to ensure they continually communicate with residents and their families, as well as all staff.

Given the unprecedented levels of alarm within the community about COVID-19, we suggest operators offer reassurance to stakeholders of actions they are taking to protect residents and staff from the virus.  Operators should (if they have not already done so) write to residents, families and staff, setting out measures that have and are being taken, and inviting any concerns to be reported.

You should also have signage at the entrance to the village warning residents and visitors that COVID-19 is highly contagious and if they are unwell they should consider self-isolation or they have recently returned from overseas they must self-isolate for 14 days and inform the operator of this.  For visitors, they should be asked to sign in at reception and sign a health declaration as to their current health status and, if they are unwell, or have recently returned from overseas or been in contact with a COVID-19 case they should be asked to leave the village.

In addition, signage should be placed at the entrances of villages and communal facilities reiterating good hygiene practices and social distancing (including maintaining a distance of 1.5 metres and for indoor gatherings a restriction of 1 person per four square metres). You should also ensure hand sanitiser is readily available in communal facilities.

The Federal Health Department has some helpful printable signage materials here.

3. Review your policies and procedures

Operators should review and revise (if necessary) any policies and procedures in place in the context of COVID-19.

For example, review infection control policies and consider increasing cleaning of communal areas, food and waste practices, emergency response plans, privacy policies and visitor/third party access reporting policies. 

4. Review your residence contracts and village by-laws

This may be the time to review your residence contracts and village by-laws to ensure they have adequate ‘emergency’ provisions in place.  

  • What do your contracts legally authorise you to do?  For example - do they authorise you to temporarily close certain facilities in the case of an emergency?
  • Do they incorporate a positive obligation on residents to inform you of health matters which extend to a guest or invitee of the resident? 
  • Do they authorise you to seek medical assistance in the event a resident gets sick?

You should also review the services you are contractually obliged to provide, and whether you will still be able to provide them in the context of COVID-19.

5. Social activities, events and visitors

As COVID-19 is highly contagious, in addition to the Federal Government directions relating to group gatherings, operators should ask residents for their support to:

  • cancel social activities and events at the village; and
  • limit the number of outsiders coming into the village.

Whilst you cannot currently prohibit resident guests or invitees from coming into your village, you should request resident support to do this.  In particular, you should ask residents to ask their visitors not to attend if they are feeling even mildly unwell, particularly if they have returned from overseas or have been in contact with someone who has tested positive for COVID-19, or is awaiting the results of COVID-19 test.

Communications to residents and their families should remind them of the Federal Government’s recent direction for all people who have come from overseas to self-isolate for 14 days and ask them to notify the operator if they are self-isolating.

Operators should consider cancelling group activities or public outings even where they are with groups lower than the Federal Government’s restrictions. These types of measures will need to be managed by balancing up operators contractual obligation to provide social activities and the risk to public health and safety in the context of residents and staff.

Be aware that aged care providers have had difficulties enforcing limits on visitors, with some visitors becoming abusive towards staff. There have even been reports of families who have recently returned from overseas trying to visit, despite the strict quarantine rules in place. In response, some aged care providers have banned visitors altogether which has been highly controversial.

6. Know about your obligations to staff

Operators will need to be clear about their expectations as to when staff should attend work, and be vigilant in relation to staff who are unwell. In imposing restrictions on staff, operators should be wary of their legal obligation to comply with the Fair Work Act 2009 and relevant anti-discrimination laws.  In particular, they must ensure that any restrictions are lawful and reasonable and are required to ensure that the health and safety of workers and others at the workplace.

Staff who are not able to work may or may not be entitled to paid leave and some may be able to work productively from home, depending on the role. It may also be in operators’ interests to expedite identification or exclusion of COVID-19 cases by funding quicker tests offered at some private hospitals for a higher fee.

For staff at work, infection control policies should be reinforced and stringent protocols implemented. Personal protective equipment (PPE) provided where appropriate. While access to PPE has been prioritised for aged care staff, it has not been for retirement village operators and supplies for PPE are currently extremely limited. 

7. Liaise with subcontractor personnel or other third party providers

Operators should issue communications to their contractors outlining who can and cannot attend the village, and any relevant updates to policies and procedures.

Consider the necessity for contractors attending the village for works that could be considered non-essential in the current climate - for example, cyclical re-painting external surfaces of buildings or gardening. 

You will need to consider the terms of your contracts to determine the appropriate mode of communication – eg. whether a policy restricting ‘at-risk’ staff from attending is permitted, or whether a more formal variation is required.

8. Manage supplies and be prepared for shortage

Operators will need to consider the terms of their supply contracts, and make contingency plans for any interruption to supply. Suppliers who are unable to fulfil their contractual obligations may argue they are not liable as the contract has been frustrated. Operators may need to seek other sources of supplies so they are still able to provide services (eg. food) they are contractually obliged to provide, and document their efforts in doing so.

9. Insurance and business continuity plan

Operators should review their insurance policies to ascertain coverage (eg. business interruption insurance, extent of public liability insurance) and any exclusion terms. It’s also important that you check your obligations to notify your insurer in the event that something goes wrong.

Retirement village operators should prepare for uncertain times and should not hesitate to seek advice from appropriate experts. COVID-19 presents novel and unprecedented challenges within a regulatory environment that is also continuing to evolve.

10. Privacy and public health obligations

Operators will need to consider what their privacy and public health obligations are in the event a resident tells the operator they are self-isolating, or have returned a COVID-19 positive test, or are undergoing testing for COVID-19.

Given the particular vulnerability of older persons to COVID-19, villages should consider whether they are entitled to notify other residents and staff if someone is infected or err on the side of caution and seek consent of the resident to inform others at risk that they are self-isolating.  State and Territory public health legislation may also permit sharing of health-related information in times of emergency.

 

We are here to help

If you require any further information regarding COVID-19, please contact Donna Rayner (03) 9609 1503 or Rosemary Southgate (03) 9609 1579 from our Retirement Living team or Anita Courtney (03) 8602 7211 or Melanie Tan (03) 9609 1577 from our Aged Care team

If you would like to keep up to date with Alerts, news and Insights from our team, you can subscribe to our mailing list here.

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