Care home staff: what to do now deadline to receive first COVID-19 vaccine has passed

Yesterday, 16 September 2021, was the deadline for care home staff to receive their first COVID-19 vaccine in order to be fully vaccinated in time for the 11 November 2021 deadline. Please refer to current Government Guidance and ACAS Guidance for further information.

The deadline has been imposed under new Regulations, which I discussed in my previous article. Unions are currently campaigning for the Regulations to be repealed for various reasons, including the risk of causing a staffing shortage in the care sector, potentially leaving care homes in the danger of closing. However, while this campaign is ongoing, and until a formal response has been provided, at present the new Regulations continue moving into force.

This leaves care home owners in a very difficult position, having to balance their new legal obligations against their duty of health and safety towards both their staff and their residents.

From 11 November 2021 it will be a legal requirement for care home owners not to permit anyone to enter inside a care home, unless they have had a complete course of the COVID-19 vaccine, or are exempt.

Care home owners are currently checking the vaccination status of all staff to ensure that they are prepared for the introduction of the new regulations. The CQC will be responsible for monitoring and enforcing the regulations.

One of the main issues that care home owners and staff are equally experiencing is how to demonstrate evidence of exemption in order that they can remain in employment after 11 November 2021.

Medical exemptions

At present, there is no system for individuals who are exempt to evidence their status. The Government Guidance currently states:

“For a small number of people vaccination is not appropriate due to clinical reasons. These people will be able to seek a clinically approved exemption from this requirement.

There will be a clear process for staff to follow if they think they may have a clinical reason to be exempt. This process will be aligned with certification for domestic events, exemptions from self-isolation for confirmed contacts and travel. Guidance for certification is being developed and we will add a link to this guidance here as soon as it’s published.”

Temporary self-certification process

The Government have now announced a temporary self-certification process for those individuals who believe they are exempt, providing the following examples of medical exemptions:

• receiving end of life care where vaccination is not in the individual’s interests
• with learning disabilities or autistic individuals, or with a combination of impairments which result in the same distress, who find vaccination and testing distressing because of their condition and cannot be achieved through reasonable adjustments such as provision of an accessible environment
• with medical contraindications to the vaccines such as severe allergy to all COVID-19 vaccines or their constituents
• who have had adverse reactions to the first dose (for example, myocarditis)

The temporary self-certification will expire 12 weeks after the launch of the NHS COVID Pass system.

Advice to care home staff

At present, it is a legal requirement to be fully vaccinated by 11 November 2021 to enter a care home, unless exempt. There are Union campaigns ongoing in the background but until a formal response is provided, the Regulations continue moving into force.

It is a personal choice whether to have the vaccine, and I cannot advise you whether or not to have this. Your employer may be able to re-deploy you into a role where the vaccine is not required. If you believe you are exempt, the Government has issued the above temporary self-certification process until they have updated the COVID App, which will allow an additional 12 weeks following the launch to provide compliant exemption evidence.

It may be that the law is repealed following Union campaigns, however we can only advise on the law as it stands currently.

I would advise that you raise any concerns as a formal grievance with your employer. In particular, remind them of their obligation to consider redeployment before dismissal. You may also want to draw their attention to any protected characteristic that you may have (for example, age, disability, sex, race, pregnancy or maternity, religion or belief), and the explain whether the reason you are objecting to the vaccination is related to the protected characteristic.

This will trigger the employer’s grievance procedure and they will then need to deal with this in accordance with their internal grievance process, or the ACAS Code of Practice.

Finally, if your employer does dismiss you they will need to have followed a fair process, or risk facing unfair dismissal claims from staff who have been employed for over 2 years. If you are subsequently dismissed for objecting to the vaccination, and your objection was for a reason related to a protected characteristic, this may lead to a potential discrimination claim. There is no minimum service to bring a discrimination claim.

Will it be illegal to employ unvaccinated staff?

At present, the Regulations do not prohibit care homes from employing unvaccinated staff. If an employee refuses to be vaccinated, the employment contract will not become illegal. Instead, continuing to employ the worker will breach the statutory restriction under the new Regulations. This will not make the employment contract void on the grounds of illegality. Instead, the care home may receive sanctions handed down by the CQC, which could have a detrimental impact on the care home.

Any questions?

If you wish to discuss the above or have any specific questions regarding your workforce, please do not hesitate to contact one of our experienced Employment Lawyers on 01202 525333 for further advice.