No jab, no entry:

the vaccination requirement for visitors to residential aged care facilities

From 1 May 2020 visitors to residential aged care facilities must be vaccinated against the 2020 seasonal influenza unless they have a medical contraindication

Under the Emergency Management (Residential Aged Care Facilities No 3) (COVID-19) Direction 2020 (Direction) given by the State Co-ordinator (Police Commissioner, Grantley Stevens) from 1 May 2020 any person (excluding residents and others who qualify for specific exemptions set out in the Direction) entering a residential aged care facility must have received the 2020 seasonal influenza vaccination. We have addressed other aspects of the Direction in separate briefings including issues related to staff vaccination in COVID-19 Direction for Aged Care; Update: COVID-19 Direction for Aged Care Facilities: Changes to who can enter a facility and COVID-19 Direction for Aged Care Facilities the mandatory vaccination requirement and related employment law issues but we detail here the vaccination requirement, and a provider's responsibilities, as they relate to visitors.

Firstly, it is important to note that the prohibition is directed to the individual.

There is however an exemption for any person (including a visitor) who:

  • has a history of anaphylaxis, or has had Guillian‑Barrè Syndrome, following vaccination; or
  • is taking checkpoint inhibitor medication for cancer treatment.

The provider/operator of the facility has a completely separate responsibility – which is to take all reasonable steps to ensure that a person covered by the prohibition does not enter or remain on the premises.

A provider therefore has an obligation to take all reasonable steps to verify if a visitor seeking to enter its facility has received the 2020 influenza vaccination or, alternatively, has a medical contraindication to the influenza vaccine. If the visitor seeking entry is unvaccinated and does not have a medical contraindication the visitor has an obligation not to enter the facility and reasonable steps must be taken by the provider to prevent them doing so.

In its Frequently Asked Questions document for 'restrictions on entry into and visitors to aged care facilities'[1] the federal Department of Health provides guidance on what 'reasonable steps' may be. The Department explains that residential aged care providers should seek 'appropriate evidence' of a visitor's immunisation status prior to the visitor entering the facility. Examples of such appropriate evidence are 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's fact sheet for families and residents also explains that visitors should expect to be asked to show evidence that they have received the 2020 influenza vaccination.[2]

In our view, a provider should also seek appropriate evidence of a medical contraindication if that is the basis upon which a person relies for being 'exempted'. For example, a statement from a health practitioner stating the visitor cannot receive the influenza vaccination due to a medical condition. This will assist a provider to demonstrate that they are taking all reasonable steps to prevent a prohibited person from entering the provider's facility.

A provider will be in breach of the Direction if it fails to take all reasonable steps to prevent an unvaccinated visitor (who does not have an exemption) from entering its facility. A breach of the Direction is an offence and carries a maximum penalty of $75,000 for a provider. Directors and managers of a provider found to have committed the offence may also be subject to a maximum penalty of $20,000. Of importance to visitors, a person who breaches the Direction will be committing an offence and may be subject to a maximum penalty of $20,000.

To demonstrate that a provider has complied with its obligations relating to the vaccination requirement, the Department of Health recommends providers maintain a record of visitors and their immunisation status.

In addition to the Direction, providers have also received advice from the Aged Care Quality and Safety Commission (ACQS Commission) on the screening requirements for people entering residential aged care facilities.[3]

The ACQS Commission recommends that all visitors undergo a routine screening process at a single point of entry to a facility regardless of a facility's size or location. The screening process will involve a standard set of questions tailored to the provider's specific circumstances and the South Australian Direction and laws. The ACQS Commission provides the following examples as questions visitors may be asked:

  • Have you been in contact with a confirmed or suspected case of COVID-19 in the last 14 days?
  • Are you in close contact with or caring for someone who is currently unwell?
  • Have you currently or within the last 7 days been unwell or been aware of any of the following symptoms:
    • fever, night sweats or chills;
    • cough;
    • runny nose;
    • sore or scratchy throat;
    • shortness of breath.

It is the ACQS Commission's advice that if a visitor responds 'yes' to any of the screening questions the visitor should be denied entry and the issue of the visitor's entry should be escalated to the decision-maker at the facility. If a visitor responds 'yes' to some questions such as whether he or she has had known contact with a confirmed COVID-19 case the South Australian Direction will require that visitor to be denied entry. For other questions, the decision-maker may need to make a judgment call based on the facility's risk management process.

The ACQS Commission advises that the screening questions and the visitor's responses should be recorded on paper, which will preferably be signed by the visitor (we note that facilities and visitors will need to be mindful of infection control such as when exchanging paper or pens). Further, to verify that a visitor's responses in the routine screening are accurate the ACQS Commission recommends each visitor's temperature be taken. However, even with these measures in place it still cannot be guaranteed that a visitor does not have COVID-19 and will not infect residents or staff upon entry into a facility.

COVID-19 poses a high risk to residents of aged care facilities. Further, a person infected with COVID-19 is contagious from approximately 48 hours before the person shows symptoms (noting that some people may never show symptoms). The Department of Health is advising family and friends of residents to not visit residents unless they absolutely have to. Instead, the Department recommends keeping in contact with residents through phone and video calls, sending postcards, photos or artwork, or film short videos to share.[4]

We note that the mandatory vaccination requirement is a temporary measure in response to the COVID-19 pandemic. However, it is possible that the state or federal parliament might consider introducing the vaccination requirement on a permanent basis.

[1] Version of document referred to in this Briefing is the version updated on 22 April 2020, https://www.health.gov.au/resources/publications/coronavirus-covid-19-restrictions-on-entry-into-and-visitors-to-aged-care-facilities. Accessed 29 April 2020.

[2] Version of document referred to in this Briefing the version updated on 30 April 2020, https://www.health.gov.au/resources/publications/coronavirus-covid-19-information-for-families-and-residents-on-restricted-visits-to-residential-aged-care-facilities. Accessed 30 April 2020.

[3] https://www.agedcarequality.gov.au/media/87892

[4] Version of document referred to in this Briefing the version updated on 30 April 2020, https://www.health.gov.au/resources/publications/coronavirus-covid-19-information-for-families-and-residents-on-restricted-visits-to-residential-aged-care-facilities. Accessed 30 April 2020.

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...Without having received the 2020 seasonal influenza vaccination family and friends of residents cannot lawfully enter the premises of a residential aged care facility (unless an exemption applies)....

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Peter Myhill

Peter Myhill

Partner
Rebecca Barr

Rebecca Barr

Partner
Helena Errey-White

Helena Errey-White

Solicitor