Residential aged care facilities
While the current Commonwealth government has not made it clear whether they will mandate flu vaccinations in elderly care by 2022, Victoria, Western Australia and the Northern Territory have all introduced new mandates to varying degrees with regard to residents, visitors, employees and volunteers in the United States. residential retirement homes. Other states and territories have opted not to introduce mandates at this stage, but many are recommending up-to-date flu vaccinations for people visiting facilities.
This follows the Australia Health Protection Principal Committee’s’Statement on preparing for the winter season‘ who noted:
- all residents are strongly advised to be vaccinated against flu,
- elderly care workers are strongly encouraged to be vaccinated against flu; and
- visitors are strongly advised to get a flu vaccine.
Below is a summary of the current rules in each state and territory as they apply to flu vaccinations in elderly care (including a link to the relevant directions or guidelines):
| State/Territory | Residents | visitors | Staff members | volunteers | mandate effective |
Victoria | Up-to-date flu vaccination not required | Up-to-date flu vaccination not required | Up-to-date flu vaccination required for employees in residential aged care services operated by public health services by August 15, 2022 and annually thereafter | Up-to-date flu vaccination not required | As of April 8, 2022 |
New South Wales | Recommended but not required | Highly recommended but not required | Highly recommended but not required | Highly recommended but not required | |
South Australia | Mandatory vaccination against seasonal flu 2021. No requirement yet for seasonal flu 2022. | No requirement yet due to seasonal flu 2022. | No requirement yet due to seasonal flu 2022. | No requirement yet due to seasonal flu 2022. | |
Queensland | Recommended but not required | Highly recommended but not required | Highly recommended but not required | Highly recommended but not required | |
Western Australia | Recommended but not required | Up-to-date flu vaccination required, if available to person | Required if available for person | Required if available for person | As of March 23, 2022 |
Tasmania | Highly recommended but not required | Highly recommended but not required | Highly recommended but not required | Highly recommended but not required | |
Northern Territory | Up-to-date flu vaccination required, if available to person | Required if available for person | Required if available for person | Required if available for person | As of December 24, 2021 |
TO TRADE | Recommended but not required | Recommended but not required | Recommended but not required | Recommended but not required |
Exceptions
In some states and territories, a person may be exempt from getting a flu vaccination even if:
- the person has a documented medical contraindication to the flu vaccine; or
- the health service has conducted a risk assessment and is convinced that it is safe for the worker to perform their role and that failure to employ the health worker would pose a serious risk to patient care.
There is no clear statement as to what a vaccination “not available” means for a person. In our view, this likely includes circumstances where there is a limited supply of the vaccine, for example in a remote area, or if someone has a medical contraindication to the vaccine. It is unlikely that religious or cultural grounds would make a vaccine “unavailable” for a person.
Additional obligations for residential aged care providers
Providers should be aware of their obligations under the Quality of Care Principles 2014 and the Archiving Principles 2014that require providers to have a flu vaccination program that:
- provides staff and volunteers access to free annual flu vaccination on site or at a local pharmacy or GP;
- actively promotes the benefits of an annual vaccination for their staff and volunteers, and for the health outcomes of care recipients; and
- keeps track of how many employees receive the flu vaccination each year (whether or not according to the provider’s flu vaccination schedule).
Home care and other administrative employees
In the absence of a public health order, many factors indicate that an employer can provide a reasonable and legal direction to require certain employees to provide proof that they have received a flu vaccination in order to continue working. For example, home care employees have personal contact with clients and possibly other members of the household and visitors who may also be present at the workplace.
We expect that vaccination advice to a home care worker would be legal and reasonable, as home health care workers can spread the infection from one client to another and clients often receive help because they are vulnerable. It may also be appropriate to apply the same rule to other administrative staff who interact with direct health care providers.
The Fair Work Commission has previously decided that, subject to implementing an appropriate process, any instruction to home health workers to vaccinate will be lawful and reasonable. Refusal to comply is a valid reason for termination of employment (see our previous Alert). However, it may not be reasonable to require an employee to be vaccinated if they have no contact with vulnerable clients or if they are not at risk of spreading the virus. Often office workers who work from home fall into this category of employees (Alexander James Marriott v Baptcare [2022] FWC 300 and Evelyn Paul v Ozcare [2022] FWC 1139†
It is very important to check all employment conditions, to follow a good process and to seek advice before giving instructions to employees who do not fall under the GGD to be vaccinated against flu.
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