COVID-19 Direction for Aged Care Facilities: the mandatory vaccination requirement and related employment law issues

If an employee or contractor refuses to receive the mandatory 2020 influenza vaccination, what options do providers have?

In our previous briefing on the Emergency Management (Residential Aged Care Facilities No 2) (COVID-19) Direction 2020 (Direction No 2) we provided an overview of the restrictions on entry into aged care facilities in South Australia.

Since our previous briefing, a new direction has been made by the State Coordinator, Police Commissioner Grantley Stevens. On 21 April 2020, the Emergency Management (Residential Aged Care Facilities No 3) (COVID-19) Direction 2020 (Direction) revoked and replaced Direction No 2. We discuss the changes introduced by the new Direction in another of our briefings.

In this briefing we discuss in more depth the mandatory vaccination requirement in the Direction in the context of employees and contractors. In particular, this briefing focuses on the exemption that applies if providers are not able to access an adequate supply of the vaccine and the employment law options providers have if an employee or contractor refuses to have the vaccination.

Medical exemption

As noted in our previous briefing, if a person (including an employee or contractor) has a medical contraindication to the influenza vaccination he or she is exempt from the requirement to receive the 2020 influenza vaccination. The prohibition on entering a facility from 1 May 2020 without having received the 2020 influenza vaccination will not apply to this class of people.

If a person is relying on the medical contraindication exemption, we recommend a provider request a medical certificate as proof the exemption can be relied upon. In our view, by requesting a medical certificate a provider is seeking appropriate evidence in accordance with its obligation to take all reasonable steps to ensure a person prohibited from entering the facility does not do so. If a provider requests a medical certificate, it is important to remember its privacy obligations concerning the collection, storage and disclosure of personal and sensitive information under the Privacy Act 1988.

Inability to access to the vaccine exemption

The second exemption (albeit conditional and temporary) to the vaccination requirement applies to a person who is an employee or contractor of a facility that is not able to access an adequate supply of the vaccine by 1 May 2020. In these circumstances, the employee or contractor can continue to enter the facility if the provider has notified the Department for Health and Wellbeing by 4 May 2020 that the facility is not able to access an adequate supply of the vaccine. In relying on this exemption, the provider must take all reasonable steps to access an adequate supply as soon as reasonably practicable after 1 May 2020.

The wording of this exemption places the obligation to obtain an adequate supply of the vaccine on the provider rather than the employee or contractor. Once the provider has access to the vaccine there is no guidance in the Direction on whether the employee or contractor has to arrange the administering of the vaccine or if the provider holds this obligation.

Providers are already required to offer free influenza vaccinations every year to staff and keep records of these vaccinations. The Department of Health has confirmed this obligation continues to apply to providers. In light of this obligation, the most appropriate course of action will likely be for providers to organise the administering of the vaccine to its employees and, if appropriate, contractors. In taking this approach, providers will be able to ensure the vaccines are administered as soon as possible.

If a provider does not organise the administering of the vaccine, it will need to seek appropriate evidence of the employee or contractor's immunisation status prior to him or her entering the facility. The Department of Health has suggested that appropriate evidence could be a statement or record from a health practitioner or an immunisation history statement available from Medicare online or the Express Plus Medicare mobile app.

The Department has also suggested that providers maintain a record of all persons (not only employees and contractors) entering the facility and proof of the person's immunisation status to substantiate the provider's compliance with the mandatory vaccination requirement.

As many providers would be aware, to assist providers in meeting the 1 May 2020 deadline the Primary Health Networks are reaching out to all providers within the respective regions to assess each provider’s needs in accessing a supply of the vaccine or vaccine administrators. The Department of Health explains the purpose of this is to prioritise providers in accessing the vaccine.

Employment law issues

A provider may be presented with challenging employment law issues if an employee or contractor refuses to receive the 2020 influenza vaccination (and does not have a medical contraindication) as he or she will be prohibited from entering the facility. For many employees and contractors this will significantly impact on his or her ability to perform their contractual duties.

If a provider does not take all reasonable steps to ensure an unvaccinated employee or contractor (without an exemption) does not enter its facility it will be committing an offence. If a provider commits this offence it may be subject to a $75,000 penalty and directors and managers may be subject to individual $20,000 penalties.

Each provider should implement a policy to be communicated to and acknowledged by all employees and contractors to comply with the Direction that all employees and contractors must have a flu vaccination in order to undertake their job, and are directed to comply unless they provide evidence as to why they cannot comply on medical grounds.

While providers must strictly enforce the Direction, providers will still need to consider and investigate any potential non-compliance on a case‑by‑case basis so as not to breach workplace anti‑discrimination laws, work health and safety considerations and the general protections provisions of the Fair Work Act 2009 (Cth).

The enforcement of the direction to comply with the Direction must be assessed on a case‑by‑case basis in light of any objection by an employee on health and safety grounds so as to ensure that the enforcement direction is lawful and reasonable in the circumstances of that particular employee.

Therefore there is no ‘one size fits all’ approach and we recommend you contact us to obtain legal advice in response to any non-compliance by your staff.

… A provider may be presented with challenging employment law issues if an employee or contractor refuses to receive the 2020 influenza vaccination (and does not have a medical contraindication) as he or she will be prohibited from entering the facility...

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Josh Abbott

Josh Abbott

Partner
Helena Errey-White

Helena Errey-White

Solicitor