From the 17th of September 2021, residential aged care workers will be required to have at least received their first dose of a COVID-19 vaccine.
With this mandate there has been some uncertainty about what this means for providers and their workforce. Mirus Australia in collaboration with Danny King Legal have formulated some frequently asked questions to support providers based on observation and feedback from our clients.
The information is general in nature, and you should seek advice in relation to what it means for your organisation if required.
Frequently asked questions
When was the mandate of the COVID vaccination announced?
The announcement was made on 30 June 2021 following a meeting of the National Cabinet.
When does the mandatory COVID vaccination come into effect?
From 17 September 2021, residential aged care workers will be required to have at least received a first dose of a COVID-19 vaccine.
Do I need to be fully vaccinated by this date?
No – Residential aged care workers only need to have at least received the first dose of the COVID vaccine by 17 September 2021.
Who needs to be vaccinated? (workforce, contractors, visitors)
According to the Department of Health website, vaccination will be mandatory for all people who work at residential aged care facilities, including volunteers, through shared state, territory and Commonwealth authorities and compliance measures.
- nursing and personal care staff;
- allied health professionals; and
- kitchen, cleaning, laundry, garden and office staff.
Basically, anyone who works at or has to attend a residential aged care facility.
What if I don’t want to have the vaccine?
From 17 September 2021, residential aged care workers may only refuse to get vaccinated if they:
- have an existing medical condition, making the vaccine unsafe;
- are at risk of having a severe allergic reaction to the vaccine;
- have specific religious beliefs against vaccinations; or
- are pregnant or breastfeeding.
If an employee refuses to be vaccinated, the employer can ask them to provide evidence to support the reason for their refusal. Employers should have conversations with their employees to better understand the employee’s reasons for not being vaccinated and it is recommended that employers and employees get seek legal advice on this topic.
Under what circumstances can an employee continue to work without the vaccine?
Employees can only continue to work without the vaccine where there is a legitimate reason to not be vaccinated as outline above.
Where there are unvaccinated workers, employers should continue to implement all reasonably practicable control measures such as physical distancing, good hygiene and increased cleaning and maintenance, to stop the spread of the virus.
If there is a legitimate reason as to why an employee cannot receive the vaccine, a risk assessment should be conducted to determine whether alternative working arrangements could potentially be put in place as in interim measure. This should take into account the employee’s specific skills and experience, the nature of the workplace and the type of work the employee performs.
What if I don’t have a valid reason and refuse?
This is likely a breach of a lawful and reasonable direction from an employer. Depending on the circumstances, an employer may be able to take disciplinary action for refusal to be vaccinated for failure to follow a lawful and reasonable direction. This will need to be considered on a case-by-case basis.
An employer should carefully consider the circumstances of an employee’s refusal to be vaccinated before taking any disciplinary action against them. It is highly recommended to seek legal advice prior to making any decisions regarding an employee’s refusal to be vaccinated.
What are the legal risks to employers for taking action against employees who refuse to get vaccinated?
The legal risk of taking action against an unvaccinated employee, including asking for evidence of an exemption or taking disciplinary action is a discrimination claim being brought against the employer.
Employees could potentially make complaints under the Sex Discrimination Act 1984 (Cth) or the Disability Discrimination Act 1992 (Cth) and/or Fair Work Act 2009 (Cth) that they have been discriminated against on the basis of a protected characteristic or exercising a workplace right.
Asking for evidence of an exemption could also give rise to breaches of the Privacy Privacy Act 1988 (Cth).
Employers or employees are encouraged to seek legal advice before taking any definitive action.
What evidence do residential aged care providers need to produce to validate an exemption for the vaccine?
This remains unclear at this point in time and we recommend monitoring for updates from the Federal Government that may make this clearer.
At this stage, once the mandate takes effect, employers will be required to provide weekly updates to My Aged Care on the following information:
- the number of residents in the service;
- the number of workers in the service;
- how many of those workers have had their first dose of the vaccine; and
- how many of those workers have had all required doses of the vaccine.
This information will not record employee’s names or any personal information, it is simply provided to My Aged Care so there is a record of the relevant numbers in each facility.
What if my workforce cannot access the vaccine before the mandate comes into effect? (consider rural / remote regions)
On 21 July 2021, data released by the Federal Health Department shows 120,011 of 276,910 aged care workers in Australia have reported receiving a first dose, or 43.4%.
If employees are unable to access the vaccination due to supply restrictions, employers should consider alternative measures to reduce the risk of the spread of COVID-19, such as mandatory mask wearing, social distancing and regular COVID-19 tests. This could also include limiting the exposure of non-vaccinated workers from vulnerable people, including most specifically, residents.
Employers should consult with employees to advise them of any changes before enforcing them, which will provide an opportunity to provide feedback and disclose any concerns employees may have with proposed changes.
What if a high percentage of my workforce is unvaccinated at the time the mandate comes into effect? (consider rural / remote regions – inability/challenges to source alternative workforce)
In the circumstances where the supply of vaccinations is limited or your staff have been unable to obtain the vaccinations, please take extra safety precautions to ensure workers and residents remain safe.
These can include:
- Mandatory mask wearing;
- Social distancing;
- Regular cleaning;
- Regular COVID-19 testing;
- Having an effective prevention and control program in place; and
- Reminding employees to stay home if they are unwell.
Employers should be strongly encouraging their workers to advise them now of their COVID-19 vaccination status to ensure employers are able to prepare for a potential outbreak and otherwise ensure the ongoing safety of its residents and staff. This includes. Employers should also promote and inform employees of the benefits of the vaccination to encourage them to get the vaccine.
Employers should also have routine check in meetings with staff, to ensure all staff have received adequate and up to date training on hygiene, COVID-19 safety protocols and PPE.
What are the reporting requirements for the COVID-19 vaccine?
From 13 July 2021 providers are required to keep records on the:
- total number of residents at each residential aged care service, and of those
- the number of residents at each service who have received a single dose of a COVID-19 vaccine, and
- the number of residents at each service who have received all required doses of a COVID-19 vaccine.
It is expected all residential aged care services currently have records of the above data.
Starting on 27 July 2021 providers are required to report the above data through the My Aged Care provider portal.
The above requirements are in addition to the existing requirement since 15 June 2021 for residential aged care providers to record keep and report weekly on the:
- total number of workers at each residential aged care service, and of those
- the number of workers at each service who have received a single dose of a COVID-19 vaccine, and
- the number of workers at each service who have received all required doses of a COVID-19 vaccine.
This applies to:
- approved providers of residential aged care facilities
- providers of Multi-Purpose Services
- flexible aged care providers of STRC delivered in a residential aged care setting
- providers of the National Aboriginal and Torres Strait Islander Flexible Aged Care Program who operate residential services
Residential Aged Care COVID-19 Employee Vaccination Support Grant
- The Government is providing residential aged care facilities with financial assistance for the following three categories of eligible expenditure:
- Casual staff going off-site for vaccination – a flat fee of $80 per employee, per dose;
- Paid leave for casual staff who become unwell after the vaccination and do not have other leave entitlements – one day paid leave (at the rate of $185); and
- Facilitation of off-site vaccination for employees – up to $500 per site in flexible vaccination facilitations costs per site. This could be used for activities including: transport services, arranging groups of staff to be vaccinated and or any other reasonable expenses that support staff to get vaccinated.
What are the penalties for having unvaccinated people in the home?
The Australian Government has not prescribed a set penalty for having unvaccinated people in the home at this point in time. However, this may be subject to change and we recommend monitoring for updates.
The Flu vaccination requirements that were ordered on 1 May 2020, serve as a good indication of the type of penalties that could be imposed.
Firstly, providers can stand down staff who have not been vaccinated with the flu vaccine by 1 May 2020 until they are vaccinated. If they have an acceptable excuse for not being vaccinated, providers need to minimise the risk and redeploy staff where there are no face-to-face interactions with residents or consider other alternatives as listed above.
If there are continuous non-compliance with the flu vaccination requirements, the listed penalties are:
- $19,000 for a natural person
- $99,000 for a body corporate.
New South Wales:
- individuals can be fined up to $11,000 plus another $5,500 for each day the offence continues and face up to 6 months imprisonment
- Corporations face a fine of up to $55,000 and $27,500 for each day the offence continues
- the fine is up to $20,000 for an individual
- $100,000 for bodies corporate.
The fine is up to $13,000, with no distinction between individuals/bodies corporate.
Where do I get more information?
Mirus is here to support our clients in ensuring compliance with the Quality standards. We have a team dedicated to quality, risk and compliance support as well as our Mirus Skills solution to help you to manage the real-time view on your workforce vaccination status.
If you require further information about the legal implications associated with the implementation of the vaccine mandate, please get in contact with Danny King Legal:
Phone: (02) 9233 5669