Coronavirus: Compulsory Vaccination for Care Home Workers
From 11 November 2021, care home workers in a CQC-registered care home in England (for nursing or personal care) are required to have a “complete course” of a COVID-19 vaccine (currently two doses), unless they have a medical exemption.
In the explanatory memorandum to the regulations, SAGE advised a vaccination uptake rate of 80% in staff and 90% in residents in each individual care home setting is required to provide a minimum level of protection against outbreaks of COVID-19. Only 65% of care homes in England are currently meeting this dual threshold, and the proportion is only 44% of care homes in London.
Scope of the Legislation
Which care homes are covered?
The legislation applies to care homes in England that:
- are registered with the Care Quality Commission (CQC); and
- provide accommodation for residents who require nursing or personal care, including younger vulnerable adults.
The original proposal was to limit the requirements to care homes that have at least one resident aged 65 or over. However, this limitation has been dropped, after concerns were raised about giving less protection to younger vulnerable adults and care homes potentially moving in and out of the scope of the legislation on the basis of a birthday or a death.
The legislation is limited to care homes in England. Corresponding legislation for care homes in Wales, Scotland and Northern Ireland is not expected.
Which individuals are covered?
Subject to any medical exemptions (see below), the requirement to be vaccinated applies to workers who enter the indoor premises of a care home, this includes full and part-time employees, agency workers and volunteers. The requirement to be vaccinated also applies to professionals visiting a care home, including healthcare workers, tradespeople, hairdressers, beauticians, and CQC inspectors.
People who are not fully vaccinated (unless medically exempt) should not enter a care home premises, unless they meet one of the identified exemptions. The main exemptions are:
- care home residents;
- friends and relatives of care home residents;
- providers of emergency medical assistance e.g. paramedics and Doctors;
- members of the emergency services e.g. police and firemen;
- providers of emergency maintenance e.g. plumbers and electricians;
- children under 18; and
- anyone visiting a resident who is dying or who is visiting a resident to provide comfort or support in relation to a bereavement following the death of a friend or relative.
Workers who only work in the outdoor surrounding grounds of a care home’s premises (for example gardeners) are not affected by the regulations.
If someone does not fall into one of the identified categories, the care home must not allow them entry unless they provide evidence that:-
- they have completed a course of an approved Covid vaccine; or,
- for clinical reasons they cannot be vaccinated (only those who cannot be vaccinated for clinical reasons are exempt, religious and philosophical beliefs do not suffice.)
The Government is expected to publish guidance to clarify who is medically exempt. The medical exemptions will reflect:
- the COVID-19: the green book, chapter 14a, which sets out reasons not to administer a vaccine; and
- clinical advice from the Joint Committee on Vaccination and Immunisation (JCVI).
However, it is clear that medical exemptions will be limited and cover individuals such as who are at risk of a serious allergic reaction to any of the vaccine’s ingredients.
There will be no medical exemption for an individual solely on the basis that they are trying to conceive, are pregnant or are breastfeeding. The JCVI advises that women who are pregnant should be offered vaccination at the same time as non-pregnant women, based on their age and clinical risk group. However, there are recommendations as to the type of vaccine that pregnant women should receive, which may affect the timing of their vaccinations.
There will be no exemption on religious grounds.
What employers can do to prepare
The Regulations do not come into force until 11 November 2021; this is to allow care homes to encourage their workers to get vaccinated, warn of the consequences if they do not, and arrange alternative staffing to replace those who refuse.
Where hesitant care workers receive the right information, in an accessible format from a trusted source, more and more are persuaded. This process requires time, resources and focus from government, local authorities and employers – but where that is the case it is having results.
Encourage staff to be vaccinated
As many employers have been doing, care home employers should urge staff to be vaccinated and can warn them that this legislation is on the way.
Care home employers are entitled to take a sterner and more urgent tone in their communications than other employers may have taken. It is particularly important that they explain the timetable for implementation and warn that the ultimate outcome for workers who do not get their vaccinations could be dismissal.
This could initially be done via a letter urging care home staff to be vaccinated in advance of law change.
Offer time off for vaccination appointments
There is no automatic entitlement for employees to take time off work to attend vaccination appointments, or to be paid if time off is granted. However, employees may have a contractual right to paid or unpaid time off for medical appointments.
To encourage employees to be vaccinated, employers could:
- pay employees during the time they need off to attend their vaccination appointments, if time off for medical appointments is normally unpaid; or
- provide employees with a new type of additional paid leave for vaccination appointments (for example two days’ additional paid vaccination leave per year).
A workforce that senses a lack of willingness to accommodate vaccination appointments – for example a lack of flexibility from line managers or requiring employees to use annual leave to attend appointments – may be less likely to be amenable to their employer’s requests to be vaccinated.
Assess who has been vaccinated
Care home employers can begin the process of asking for evidence from staff that they have been vaccinated. In the early stages, this could be asking to show evidence via the NHS app or a vaccination card.
Care home employers can also use this process to identify workers who potentially have a medical exemption.
In addition, employers can begin the dialogue with workers who have not yet arranged their vaccination appointments, or indicated that they do not want to have the vaccine. Line managers can drive home the importance of being vaccinated and some reluctant workers may ultimately be persuaded.
When gathering information on who has been vaccinated, care home employers need to remember that this is health information that is classified as special category personal data under the UK General Data Protection Regulation (retained from EU Regulation 2016/679 EU) and Data Protection Act 2018. There are specific rules in place for processing special category personal data, including the requirement to have an appropriate policy document in place.
In particular, employers should ensure that:
- they are transparent with the workforce about the reason for collecting information about its employees’ vaccination status; and
- data collected about its workforce’s vaccination status is held securely and accessed by, and disclosed to, individuals only for the purpose of ensuring that it complies with this new legal requirement.
Formulate plans to manage non-vaccinated workers
Care home employers must formulate plans to manage workers who are not vaccinated by November 2021, by either:
- redeploying them in an alternative role away from the organisation’s care homes (although the reality for many care homes is that redeployment options are limited); or
- where an alternative role is unavailable, having a process in place to dismiss them.
Employers are allowed to continue to deploy medically exempt workers, although need to think about what additional safety measures they can put in place. For example, employers could adjust their shifts to reduce the amount of time they are in direct contact with residents and ask them to wear a face mask when they are in close contact with residents.
Put in place process for dismissing non-vaccinated workers
Care home employers, even those that have made meticulous preparations, may find as the implementation date approaches that they have some non-medically exempt workers who have not been vaccinated.
Making vaccination mandatory for a selected group of workers and not others could be discriminatory, and we could see legal challenges from employees and potential employees under the Equality Act 2010 and the Human Rights Act 1998 in which case the employer would have to justify its actions. Should an employer dismiss an existing employee for not having the vaccination, they may additionally face a claim of unfair dismissal under the Employment Rights Act 1996. The employer would need to demonstrate that they acted reasonably and that the dismissal was justified.
Once the new law has come into force, the dismissal of a non-vaccinated individual who is unable to continue to work in a care home without contravening the legislation would be potentially fair under s.98(2)(d) of the Employment Rights Act 1996. This is often referred to as a “statutory bar” dismissal and could include the scenario where an individual is legally required to be vaccinated to be deployed in a care home, but has not had their jabs.
Alternatively, the dismissal could be for “some other substantial reason” under s.98(1)(b) of the Employment Rights Act 1996.
A care home employer may feel that it has no option but to dismiss the individual and that following any procedure is futile. However, it is still good practice to follow a basic process, which contributes to the reasonableness of the dismissal and reduces the risk of an employment tribunal claim for unfair dismissal.
At the very least, the employer should:
- communicate regularly with the individual in the run-up to the legal change about the need to be vaccinated; and
- hold meetings with the individual to discuss their situation before dismissing them.
This is because the employee may be reluctant or unwilling to be vaccinated for reasons related to a protected characteristic, such as pregnancy, disability, or a religious or philosophical belief. A constructive and sympathetic approach, including looking into whether there is an alternative role available for them away from the organisation’s care homes, reduces the risk of a subsequent discrimination claim.
Some commentators suggest that employers are free to dismiss employees with less than two years’ service because they cannot claim ordinary unfair dismissal. However, employers need to remember that there is no minimum service requirement to bring a discrimination claim.
Deal with recruitment and contractual issues
It is important for care home employers to plan changes to their recruitment processes to take account of the new legal requirement. Employers should:
- make clear to potential recruits that, unless they have a medical exemption, it is a legal requirement for them to be vaccinated to be deployed in the organisation’s care homes;
- make job offers conditional on being vaccinated, with offers being withdrawn if this condition is not met; and
- include the requirement to be vaccinated in new recruits’ contracts of employment, which gives a sense of certainty to both parties.
For existing staff, employers need to weigh up the pros and cons of asking them to sign variations to their contracts of employment, bearing in mind:
- the current wording of contracts, which may already be wide enough to cover this;
- the size and difficulty of the administrative task of asking everyone to agree to amendments to their contracts of employment;
- potential employee relations challenges and the risk of losing staff who do not want to agree to this variation of contract; and
- the long-term benefits to the organisation of putting mandatory vaccinations on a contractual footing, especially as it looks like coronavirus is now endemic and COVID-19 vaccinations are here to stay.
The Government plans to launch a further consultation on whether to make COVID-19 vaccination a condition of deployment in other health and social care settings. This would include NHS workers and domiciliary carers. This further consultation is also expected to examine whether flu vaccination should be made mandatory for health and social care workers.
Template Letter To Notify Employees Of The Requirement To Be Vaccinated
My model letter provides employees with information on the new legislation that becomes a legal requirement on 11 November 2021 and encourages them to be fully vaccinated before that date.To download the Template Letter complete your details below and an email containing the document will find it’s way to your inbox: