Information current at date of publication: 21 April 2020. The average reading time for this Alert is four minutes.
New rules have commenced in all States and Territories requiring anyone entering an aged care facility to have a flu vaccination.
The directions apply to employees, contractors and visitors. This includes all staff as well as visiting health practitioners, volunteers and contractors such as cleaners, gardeners, and tradespeople.
The Commonwealth government indicated that the new rules would commence on 1 May 2020 however the rules have already effectively commenced in most States and Territories (ie in Victoria prior to 1 May visitors must have the 2019 vaccine, afterwards they must have the 2020 vaccination).
The following is a summary of the new rules (including a link to the relevant directions):
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State/Territory
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Required for entry
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Exemption?
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Effective
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Victoria
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Up to date vaccination against influenza if such a vaccination is available to the person.
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13 April 2020 – 11 May 2020
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New South Wales
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Up to date vaccination against influenza if such a vaccination is available to the person.
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Minister may exempt a person if satisfied that it is necessary to protect the health and well-being of residents or staff of a residential aged care facility.
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24 March – 22 June 2020
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Queensland
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Up to date vaccination against influenza, if such a vaccination is available to the person.
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21 March – 19 May 2020
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South Australia
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Once 2020 influenza vaccine becomes available in South Australia, a person must be vaccinated.
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From 10 April 2020 for the duration of the public health emergency.
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Western Australia
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Up to date vaccination against influenza if such a vaccination is available to the person.
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Duration of the public health emergency.
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Tasmania
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Up to date vaccination against influenza if such a vaccination is available to the person.
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Person must have a medical recommendation against the administration of the vaccine to the person in order to be exempt.
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23 March and 15 April 2020.
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Australian Capital Territory
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Up to date vaccination against influenza if such a vaccination is available to the person.
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.
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23 March 2020 until conclusion of the declared public health emergency.
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Northern Territory
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Must be vaccinated this year against influenza, if available to the person.
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In force until the conclusion of the public health emergency declaration.
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When is a vaccination “not available” to a person?
In all States and Territories other than South Australia, the requirement does not apply if a vaccination is not available to a person.
Whether the vaccine is not available to the person raises a number of issues. For example, if a person objects to the vaccination on religious cultural grounds, are they excused? The position that each State or Territory will take in relation to this is not clear. However, in our view, only the following contraindications are clearly acceptable reasons:
- those who have previously experienced anaphylaxis following vaccination;
- those who have previously had Guillain-Barre Syndrome following vaccination; and
- those on check point inhibitor drugs for cancer treatment.
In our view, it is unlikely other grounds (whether religious or cultural, or even other medical grounds) would be sufficient to excuse a person from having the vaccine, other than for people in New South Wales or Tasmania who are covered by an exemption.
Another issue is whether a staff member or visitor could say the vaccine is not available to them if there is a limited supply of the vaccine, eg in a regional area. It is possible that some States and Territories may accept this as a reason not to have the vaccine.
What should Aged Care providers know?
In light of the directions, we recommend that each facility has a policy which states that following the directions of the Federal and State governments, all employees 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 should strictly enforce State and Federal Government directions, non-compliance should be dealt with on a case-by-case basis having regard to workplace anti-discrimination laws, safety considerations and the Fair Work Act 2009 (Cth).
Providers must also take all reasonable steps to ensure that a person does not enter or remain on the premises if they do not have the required flu vaccination. Appropriate evidence of vaccinations should be collected and kept for compliance reasons.
Does the rule apply to residents?
Residents of aged care facilities should be encouraged to have the vaccination, but they have the right to refuse. An aged care facility will also be able to admit any new residents who have not been vaccinated. However, any prospective resident and their family, cannot tour a facility without being vaccinated as they are merely visiting at the time.
In Victoria, these directions have been extended to additional services, covering a broader range of care facilities for providers of disability and welfare services.
Federal, State and Territory directions in relation to the COVID-19 pandemic are regularly updated. Providers should continue to be aware of the applicable directions and remain informed about who is authorised to enter the premises, as well as any updates to the vaccination requirements.
How we can help
If you require any further information on this Alert or would like some information about our Russell Kennedy template documents, please contact Anita Courtney, Libby Pallot, Solomon Miller and Dr Melanie Tan.
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