The Department of Health maintains that “vaccination of aged care residents and those who care for them is the most effective protection against COVID-19.” However, as the media has reported, the vaccine rollout to aged care staff has not been as efficient as promised and many aged care workers remain unvaccinated.
In most cases this is due to lack of availability of the vaccine. But in some cases, staff have refused to be vaccinated. This raises the question: can residential aged care providers insist that their staff receive COVID-19 vaccinations?
The Short Answer: Probably Not (Yet)
As at 20 April 2021, the question of whether you can make the COVID-19 vaccine mandatory for your staff is a tricky one that the law does not clearly answer. The current advice from the Fair Work Ombudsman, as well as Safe Work Australia, is that there is a high hurdle to overcome before an aged care home can lawfully insist that staff be vaccinated against COVID-19. But that could change if State or Territory Governments change their public health directions.
Meanwhile, there are some more precise questions that we can clearly answer.
Am I Legally Required to Ensure Staff are Vaccinated?
No. According to Safe Work Australia, “There are currently no laws or public health orders in other states or territories that specifically enable employers to require their employees to be vaccinated against COVID-19.”
Do I Have a Work Health and Safety (WHS) Duty to Ensure My Workers Are COVID-19 Vaccinated?
No. According to Safe Work Australia, you have a duty under WHS laws “to eliminate or if not possible, minimise, so far as is reasonably practicable, the risk of exposure to COVID-19 in the workplace.” But, “it is unlikely that a requirement for workers to be vaccinated will be reasonably practicable.”
In other words, at April 2021, you’re not breaching your WHS duties merely by letting unvaccinated staff work at your facility.
But I Really Want to Impose Mandatory Vaccination: What Can I Do?
According to the Fair Work Ombudsman, “whether an employer can require their employees to be vaccinated against coronavirus is highly fact dependent, taking account of the workplace and each employee’s circumstances.” The Ombudsman suggests that “relevant factors” you should consider include:
- whether a specific law requires an employee to be vaccinated (as at 20 April 2021, there is no such law, so this factor doesn’t help you)
- whether an enterprise agreement, other registered agreement or employment contract includes a provision about requiring vaccinations (check your agreements, but it is unlikely that they contain such a provision)
- if no law, agreement or employment contract applies that requires vaccination, whether it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated (this is the point you will probably have to rely on).
So, if you want to impose vaccination you will have to make sure it is “lawful and reasonable” to do so. In regards to lawfulness you will have to take close account of anti-discrimination legislation. In regards to reasonableness, you may have a better argument than most employers do, as the Ombudsman specifically notes that mandatory vaccinations may be considered “more likely to be reasonable … where employees have close contact with people who are most vulnerable to the health impacts of coronavirus infection (for example, employees working in health care or aged care).”
In any case, if you are keen to impose mandatory COVID-19 vaccinations, you should seek legal advice.
What Happens if I Dismiss a Worker for Refusing the COVID-19 Vaccine?
Your worker could make a claim against you for wrongful dismissal. To refute the claim, you would have to show that your insistence on the vaccine was lawful and reasonable.
Can My Workers Refuse to Come to Work Because Another Worker Isn’t Vaccinated?
According to Safe Work Australia, “a worker will not be able to rely on the WHS laws to cease work simply because another worker at the workplace isn’t vaccinated, however this will depend on the circumstances.” The issue will come down to whether the worker has a “reasonable concern” that they would be exposed to “a serious risk to the worker’s health or safety from an immediate or imminent exposure to a hazard.”
The Situation Could Change So Stay Up to Date
As at April 2021, you are not required to ensure that your workers are COVID-19 vaccinated. But that could change overnight. At any time, your State/Territory Government could change its residential aged care direction to require all aged care staff to be COVID-19 vaccinated.
And this is not a remote scenario. Flu vaccinations are mandatory for residential aged care workers in most states and territories, and in Queensland the COVID-19 vaccine is mandatory for some hospital workers and ambulance staff. So make sure you stay up to date by regularly checking these websites for the aged care direction in your state/territory:
- Australian Capital Territory: Public Health (Residential Aged Care Facilities) Emergency Direction (ACT)– scroll down until you see the latest “Public Health (Residential Aged Care Facilities) Emergency Direction”.
- New South Wales: Public Health (COVID-19 Residential Aged Care Facilities) Order (NSW)– this page is a summary of the direction with FAQs and a link to the full text of the direction.
- Northern Territory: COVID-19 Directions for Aged Care Facilities (NT)– scroll down until you see the “CHO Directions – Directions for Aged Care Facilities”.
- Queensland: Aged Care Direction (Qld).
- South Australia: Emergency Management (Residential Aged Care Facilities) (COVID-19) Direction 2020 (SA)
- Tasmania: Direction Under Section 16 – Residential Aged Care Facilities (Tas)– scroll all the way down to the “Public Health Act 1997” and find the direction marked “Direction Under Section 16 – Residential Aged Care Facilities”.
- Victoria: Directions – Care facilities– scroll down to “Directions issued by Victoria’s Chief Health Officer” and click the drop down menu marked “Care facilities”.
- Western Australia: Visitors to Residential Aged Care Facilities Directions (WA)– scroll down to the drop down menu marked “Aged Care” and click on the “Visitors to Residential Aged Care Facilities Directions”.
To stay up to date with the rapidly-changing COVID-19 regulations and advice, see CompliSpace’s free COVID-19 Regulatory Changes page.