As all providers are now well aware, from 17 September 2021 a person can only work in a residential aged care facility if they have at least received their first dose of a COVID-19 vaccination, or are covered by an exemption. Each state and territory in Australia has issued health directions to this effect, in accordance with their public health laws.

In the lead up to the 17 September 2021 deadline, providers have been seeking information about the vaccination status of their residential aged care workforce, and planning rosters to ensure that they can comply with the relevant public health orders.

Turning our minds to post-16 September 2021, residential aged care providers cannot allow workers who have not been at least partially vaccinated against COVID-19, and provided evidence to that effect, to attend their facility to perform their usual duties as an aged care worker, unless they have an exemption. In addition, providers are assessing the health and safety risks in their environment and considering whether additional measures will be implemented where unvaccinated employees with exemptions will continue to work.

This is a difficult time for providers who may now be deciding what to do with employees who have indicated that they will not comply with the health directions. Providers may consider a range of options including redeployment, leave, suspension or dismissal. In relation to other workers such as volunteers, labour-hire and contractors, the state and territory health directions only cover these workers in some instances, but providers still have a range of options available to them when determining whether they will grant them access to their premises.

Naturally, if providers do need to consider redeploying, suspending or dismissing an employee due to non-compliance with the mandatory vaccination directions, these decisions should be made in light of the relevant employment agreement and industrial instrument, as well as any possible discrimination claims that may arise on the basis of a protected attribute.