Mandatory COVID-19 vaccinations for all staff in CQC regulated care homes

Under the new regulations effective from 11 November 2021, all care home workers (to include temporary, permanent and agency staff) and any professionals and tradespeople who enter care homes will need to be fully vaccinated, unless they are exempt under the regulations. This applies to all Care Quality Commission (CQC) regulated care homes which provide accommodation for persons who require nursing and personal care in England.

The Government has confirmed that there is a clear public health rationale for the implementation of the new legislation as it aims to ensure care home residents are better protected from the risk of death and serious illness resulting from Covid-19.

There is a 16 week grace period that started from 22 July 2021. This means that care home workers will need to have had their first dose of the vaccine by 16 September 2021 to ensure that they are fully vaccinated by the time the regulations come into force on 11 November 2021.

Employees who are medically exempt will not be required to receive the vaccine.

The Government published its operational guidance on vaccinations of people working or deployed in care homes on 4 August 2021. A link to the guidance can be found here.

Employers should be taking the following steps now to ensure compliance with the regulations:-

1. Discuss the new legislation and requirements with all staff members including the requirement for them to provide evidence of vaccinations/ medical exemptions. If trade unions are recognised, we would recommend that they are involved to assist with consulting staff members and dealing with any operational issues or concerns;
2. Take steps to educate staff members on the benefits of having the vaccines to encourage take up;
3. Ensure policies and procedures are updated to reflect the new requirements (i.e. data protection policies/ privacy statements and consider adopting a vaccination policy) and ensure that the updated versions are communicated to all staff members;
4. Consider how you are going to deal with obtaining records of vaccinations/ exemptions. Data about vaccinations or medical exemptions is health data and therefore special category data for the purposes of the UK GDPR and Data Protection Act 2018. Employers should ensure that they are complying with the Data Protection legislation;
5. Consider how you will deal with staff members who have and continue to refuse to be vaccinated. Under the Government’s guidance, employers should explore whether redeployment into an alternative role is an option (i.e. where vaccination is not required) or whether staff members can be on paid or unpaid leave whilst they are waiting to be fully vaccinated (i.e. if the employee has received one vaccine but is not fully vaccinated by 11 November 2021).

If all options have been exhausted, employers may be able to dismiss employees or terminate workers’ contracts if they are unwilling to be vaccinated and are not exempt. A fair reason for the dismissal may be ‘some other substantial reason’ however, a fair process will need to be followed to avoid a potential unfair dismissal claim. Each case will likely depend on its own facts.

Employers may face discrimination claims from some members of staff where the staff member has been dismissed as a result of a refusal to be vaccinated. This may be based on a religious or philosophical belief. To defend these claims, employers would need to prove that they have a legitimate aim and it is likely that compliance with the regulations would be considered a legitimate aim, as long as the employer has taken all other reasonable steps before dismissal.

Employers will need to ensure that its practices, policies and procedures do not discriminate against workers.

If you require any further advice or assistance on this matter or in relation to any employment law matter, please contact our Employment Solicitor, Rebecca Bennett at rebecca.bennett@ellisjones.co.uk or call 01202 525333.

Our Employment Team offers a wide range of services from contract reviews to assisting with Employment Tribunal claims. A full list of our services can be found here.