By Rachael Sutton, Partner and Louise Cantrill, Partner
On 28 June 2021, National Cabinet agreed that workers in residential aged care facilities must receive a first dose of COVID-19 vaccine by 17 September 2021, however although the Aged Care Act and Aged Care Quality Standards recommend vaccinations as part of infection control the legislative basis for the requirement is contained in the public health orders and directions for each state and territory which are summarised below.
| Jurisdiction | Legislation | Date of Order | Requirements | Date Order takes Effect |
| Federal | Aged Care Act 1997 (Cth) | N/A |
Aged Care Quality Standards recommend vaccinations as part of infection control plans |
N/A |
| Australian Capital Territory | Public Health (Aged Care Workers COVID-19 Vaccination) Emergency Direction 2021, under the Public Health Act 1997 (ACT) | 20 August 2021 |
By 11.59pm on 16 September 2021 a worker at a residential aged care facility must produce for inspection evidence acceptable to the Chief Health Officer that they have received at least one dose of a COVID-19 vaccination. The Chief Medical Officer may grant an exemption from the order. |
16 September 2021, 11.59pm |
| New South Wales | Public Health (COVID-19 Aged Care Facilities) Order 2021 under the Public Health Act 2010 | 25 August 2021 |
As of 17 September 2021 all employees are required to have their first dose of a vaccination unless the employee has a medical contraindication evidence by the form approved by the Chief Health Officer or exemption from the Minister. Medical exemption form can be accessed here. |
17 September 2021 |
| Northern Territory | COVID-19 Directions (No 48) 2021; Directions for Aged Care Facilities | 19 August 2021 |
Employee must have had influenza vaccination As of 17 September all employees are required to have first dose of COVID-19 vaccine As of 31 October 2021 second dose of COVID-19 vaccine. |
19 August 2021 |
| Queensland | Residential Aged Care Direction (No.6) under the Public Health Act 2005 (Qld) | 18 August 2021 |
As of 16 September 2021, received at least one dose of a COVID-19 vaccine; and by 31 October 2021, received, or has evidence of a booking to receive, the prescribed number of doses of a COVID-19 vaccine; There is a medical exemption available however no specified form, but the evidence required includes, a medical certificate from a registered medical practitioner certifying – a recognised medical contraindication; – whether the medical contraindication will permanently or temporarily prevent COVID-19 vaccination; and – when the person may be able to receive the COVID-19 vaccination, where the medical contraindication only temporarily prevents COVID-19 vaccination. |
18 August 2021 |
| South Australia | Emergency Management (Residential Aged Care Facilities No 41) (COVID-19) Direction 2021 under section 25 of the Emergency Management Act 2004 | 20 August 2021 |
Employees required to have their influenza vaccination by 1 June 2021; Employees required to have received at least one dose of a COVID-19 vaccine; and has received, or has evidence of a booking to receive, a second dose of a COVID-19 vaccine. Exemptions for medical contraindications and pregnancy |
17 September 2021 |
| Tasmania | Direction under Section 16(Mandatory Vaccination of Certain Workers – No. 1) Public Health Act, 1997 | 13 August 2021 |
Employees are required to have received at least one dose of a vaccine and has made a booking to receive, as soon as is reasonably possible, all other required doses of the vaccine that are necessary for the person to be to be issued with a vaccination certificate Medical contraindication and age exemptions available subject to evidence requirements |
17 September 2021 |
| Victoria | *Not available as at 10 September 2021 | |||
| Western Australia | Residential Aged Care Facility Worker Access Directions under the Public Health Act 2016 (WA) Sections 157(1)(e), 157(1)(k), 180 and 190(1)(p) | 9 August 2021 |
As of 17 September 2021 all employees are required to have at least one dose of a vaccination |
12.01am 17 September 2021 |
*Requirements for Victoria will be updated when available.
Tips for managing employees and vaccination requirements
- Early and clear communication in writing of the requirements to vaccinate and the evidence required for a medical contraindication should be provided.
- The requirement to have the vaccination is an inherent requirement of the job by virtue of the Public Health Orders or Directions in each jurisdiction.
- Each Order or Direction has specific exemptions for emergencies and workforce limitations or issues that may allow for exceptions so employers should check the Order or Direction before proceeding with a termination of employment for lack of vaccination.
- If the employee provides evidence of a medical contraindication, check if is it meets the terms of the Order or Direction. If it does then consideration of whether their ongoing employment can be accommodated (provided it is in keeping with the Order or Direction) must be considered. Alternatives such as offering leave or leave without pay for the duration of the Order or Direction may be considered otherwise termination of employment is possible in the absence of those alternatives.
- If there is an issue as to the validity of the medical contraindication being claimed, you can seek to clarify it with the medical practitioner providing the evidence or form and it is advisable to seek legal advice before terminating if there is an issue in this regard.
- Beware of fake forms and certificates and/or evidence of vaccination from employees as forms and certificates can and are be forged. An immunization history statement may be requested as proof of vaccination from employees.
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