No jab, no job

21 April 2020

“No Jab, No Job” makes for a very clear message for all aged care workers, visitors, contractors and anyone attending a residential aged care services but it is important for all industry participants to consider the real consequences such a direction creates.

Effectively Australian Health Protection Principal Committee (AHPPC) recommended that entry to a residential aged care service be restricted to prohibit visitors and staff from entering a service if, among other things they have not been vaccinated against influenza (Fluvax), effective 1 May 2020.

The National Cabinet agreed to the recommendation on 18 March 2020 and each state and territory have now issued their own directives.

The intention is clear, to continue to protect the most vulnerable to COVID 19, residents in residential aged care. However, the recommendations have the potential to have a significant impact on approved providers and their ability to staff residential aged care services.

For a start, No Jab does not legally mean No Job. Requiring a person to be vaccinated for influenza may be seen by some to be a lawful direction, there are others who cannot by virtue of their beliefs or reaction to the vaccination receive the Fluvax.

What is the legislative basis of the direction?

The Commonwealth Minister for Health has broad powers to issue directions and requirements under the Biosecurity Act 2015 in the event a human biosecurity emergency event exists.

The Governor General declared on 18 March 2020 that a human biosecurity emergency existed with the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) Declaration 2020 (Cth). This is the first time these powers have been triggered.

The recommendations of the AHPPC were presented to the National Cabinet with each state and territory subsequently adopting the directions under their own public health and emergency legislation (such as the Victorian Public Health and Wellbeing Act 2008, s 200).

A Commonwealth direction does not appear to have been issued under the Biosecurity Act 2015.

There are only 2 States that have identified exemptions to the general directives:

  1. NSW – the Minister may exempt a person from being required to be vaccinated if the Minister is satisfied it is necessary to protect the health and wellbeing of the residents or staff of a service; and
  2. Tasmania also provides for an exemption where “……there is a medical recommendation against the administration of the vaccination to the person.”

All other States and Territories are limited to the very broad exemption of the “availability of the vaccine.”

What do Providers have to do?

The Department of Health has issued a FAQ page which provides the following guidance:

  • The obligation is for operators to take all reasonable steps to ensure a person does not remain on the premises if they do not meet the requirements of the direction. What constitutes reasonable steps has not been defined by the Department;
  • Operators should seek “appropriate evidence of immunisation status” from individuals seeking to enter the service. This could include a statement or record from a health practitioner, or an immunisation history statement available from Medicare;

​There are no hard and fast rules about what evidence should be obtained, but it must be sufficient for an operator to substantiate that the person entering its premises has had the 2020 Fluvax.

  • The Department notes that Tasmania and NSW “do allow some exemptions” to the immunisation requirements, but “residential aged care providers may otherwise need to redeploy staff that are not able to be vaccinated”.

Redeployment

The Department has advised providers to ‘redeploy’ staff who are either unable or unwilling to be vaccinated. However, redeployment is clearly not feasible in residential aged care.

Redeployment in residential aged care requires people with specialist skills being relocated to an area where they have no skills and an inability to transfer between specialist areas. A carer is not an accountant and an accountant cannot provide care.

Even if a provider were able to redeploy some staff, they will still be required to replace the redeployed carer with another carer and effectively pay for two staff. Providers are not funded for this type of direction.

Providers are currently facing unprecedented pressures to ensure the health and safety of not only residents in their care but also staff that are exposing themselves to possible infection.

Recommendations

All providers must comply with the directive in its current format. We strongly advise our clients to determine the impact of the direction on their services and the implications it will have on staffing the service.

Have a clear COVID 19 Response and Management Plan that will support the decisions you are making during the time of the outbreak.

Obtain clear legal advice in relation to your ability to deal with staff who do not meet the requirements regarding “medical recommendation against administration” or those for whom it is a preference rather than an ideological decision.

Prepare to ‘redeploy’ staff where you can and keep clear records on staff, visitors, external health practitioners, and others entering the service about their vaccination status.

A suggestion has been made that staff working in residential aged care who refuse the Fluvax be redeployed to provide care and services to home care recipients as there is no corresponding requirement for home care staff to have had a current Fluvax.

Such a suggestion is problematic given the specialty of home care services and the potential exposure to a number of frail aged living in their own homes to a carer that may attend multiple care recipients.

There are many difficult decisions being made in the best interests of our community, but these decisions must be made considering the consequences and the practicality of their implementation.

This article was written by Sabine Phillips AM, Partner and Genevieve Bolton, Solicitor.

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