Queensland’s Chief Health Officer (CHO) has resolved the inconsistency between State and Commonwealth requirements for persons entering a residential aged care facility to have had an influenza vaccination.
By media statement dated 18 March 2020, the Commonwealth Government declared that all visitors and staff (including visiting workers) to a residential aged care facility should not be permitted to enter after 1 May 2020 unless they have been vaccinated against influenza. However, it was left to each State and Territory to introduce legislative measures to give effect to this policy.
Under the Public Health Act 2005 (Q), Queensland’s CHO issued the Aged Care Direction on 21 March 2020, requiring any person entering or remaining on a residential aged care facility in Queensland (other than a resident of the facility themselves) to have an up to date vaccination against influenza, if the vaccination is available to the person. However, contrary to the Commonwealth Government’s media statement, the date of effect of this requirement was the date of publication of the direction, being 21 March 2020.
Queensland's CHO has now resolved this inconsistency by replacing the previous direction with the Aged Care Direction (No. 2), issued on 17 April 2020. The replacement direction now states that the requirement regarding influenza vaccinations only applies after 1 May 2020. This means that the requirement applies from and including 2 May 2020.
The replacement direction also introduces a specific example of when an influenza vaccination is considered to not be “available” to a person – i.e. when the person has a medical contraindication to the influenza vaccine. The direction is silent as to whether the same applies to objections on religious or cultural grounds. In this regard, providers should seek specific legal advice regarding their obligations under State and Federal discrimination legislation, the Fair Work Act 2009 (Cth) and relevant industrial instruments.
The replacement direction also creates a new exception, allowing a person without an up to date vaccination against influenza to enter and remain on a residential aged care facility for the period reasonably required to provide an emergency service that is necessary for the effective operation of the facility or to protect the health and safety of staff and residents. However, the person must practise social distancing wherever possible, including maintaining a distance of at least 1.5 metres. A specific example is also included – i.e. a plumber making emergency repairs if an employee or contractor with an up to date vaccination against influenza is unable to attend.
As was the case under the previous direction, residential aged care providers are obliged to take all reasonable steps to ensure that a person does not enter or remain on the premises if that person is prohibited from doing so under the direction.
The direction also maintains the previous requirement that residential aged care providers must not permit a resident, other than an end of life resident, to leave the facility, except to receive or access health care or in the case of emergency. Industry has queried how providers can practically enforce such a requirement.
The changes referred to above have therefore clarified aged care providers’ obligations to some extent, but further clarification is warranted.
If you wish to discuss this article or any other aged care issues in more detail, please contact Stuart Lowe on 07 3224 0355.
Article written by Stuart Lowe (Partner).
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