11 November 2021: COVID-19 vaccinations in the care home sector become mandatory
From 11 November 2021 it will be a legal requirement for workers in care homes to be fully vaccinated against COVID-19. The care home must ensure they do not allow anyone to enter the care home, unless they are fully vaccinated or exempt.
The legal requirement applies to care homes in England who are registered with the CQC where residents require nursing or personal care. Only applies to care homes, no legal requirement in other sectors to be fully vaccinated.
If care homes have not already started doing so, they must commence consultation with staff on their vaccination status to meet the deadline in time.
Vaccine status can currently be demonstrated using a COVID Pass, which can be viewed on the NHS website, App or posted to the individual. The care home should keep a record of the vaccination/exemption status of all staff. If medically exempt, there is no requirement to record the clinical reason. It is likely that these records will need to be shared with CQC.
Who must be fully vaccinated by 11 November 2021?
Anyone who needs to enter the building to work in a care home, unless they are exempt. This includes all workers who are over 18 (full time, part time, volunteers, agency staff, those attending a job interview etc.). This also applies to those attending care homes to do other work (i.e. healthcare workers, tradespeople, maintenance, hairdressers, CQC inspectors). Exemption will apply to those working on “urgent maintenance work”.
You will note that there is an indirect impact on other businesses who work with care homes, who will need to review the vaccination status of those staff who enter care homes.
Who is excluded?
This vaccination requirement does not apply to the following: residents, those aged under 18, emergency services, those who provide urgent maintenance assistance, staff who only work outdoors and visitors to the home, and those who are exempt under the regulations.
Key dates for compliance
16 September 2021: last date for care home workers to receive their first vaccine (to ensure they are fully vaccinated by the time the regulations come into force).
11 November 2021: deadline to receive the second dose in order to be fully vaccinated to enter the workplace.
Steps to take now
- Consult with your staff and gather vaccination data that includes staff who are:
- vaccinated, medically exempt, or under 18 (with evidence)
- vaccinated or believe they may be medically exempt (no evidence)
- not yet fully vaccinated but will arrange to be fully vaccinated in time
- not yet been fully vaccinated and unlikely to be fully vaccinated in time
- over 18, not medically exempt and do not wish to be vaccinated
- Note any staff members who are due to turn 18, as the regulations will apply once they turn 18.
- Consider any staff who are not currently in the workplace i.e. on holiday, sick leave, family leave (maternity, adoption, paternity, shared parental etc.), or a career break.
- Consider introducing a written vaccination policy, and consulting with staff before implementing.
- Updating data protection policies – vaccination/exemption records are special category data, which needs to be processed very carefully.
The Government guidance recommends that any concerns raised by staff should be explored, and a reasonable opportunity must be provided to receive a vaccination or obtain exemption evidence before formal action is taken. It is important to inform staff of the potential consequences of not complying with the requirement, the deadline for complying with the requirement, and what steps will be taken if it is not complied with.
What to do if your staff are unable to provide proof of vaccination or exemption
The options will be to explore redeployment into an alternative role where vaccination is not required, or moving towards dismissal (the regulations may provide a fair reason if the staff member is not vaccinated or medically exempt).
If a member of staff is not vaccinated and cannot provide exemption evidence, all options should be explored i.e. redeployment into any alternative role without direct contact with residents outside of the care home.
If there are no suitable alternatives, steps may be taken towards dismissal. It is important to follow a fair process and act reasonably and fairly to reduce the risks of Tribunal claims (employees who have at least two years’ continuous service have the right not to be unfairly dismissed).
Potentially fair reasons set out in the guidance include:
- the employee cannot continue to work in their position without the employer contravening a duty or restriction imposed by or under an enactment, or
- some other substantial reason of a kind as to justify the dismissal of an employee holding the position which the employee held, or
- dishonestly providing vaccination evidence (likely to amount to misconduct or gross misconduct).
An additional consideration is the risk of unlawful discrimination, in particular disability due to the health nature of the regulations. The exception sets out it will not be unlawful discrimination in relation to age, disability, religion, or belief for a care home to ensure that a person who is over 18 and has not been vaccinated/is not medically exempt does not enter the care home. This does not extend to the other protected characteristics.
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.