Is your care home ready for the new COVID-19 regulations?

My previous news article discussed COVID-19 vaccinations in CQC-regulated care homes becoming mandatory.  It was becoming a legal requirement from 11 November 2021 for workers in care homes to be fully vaccinated against COVID-19, unless they were medically exempt.

At this time, there was no system for individuals who were exempt to evidence their status. In response, a temporary process was introduced where workers in care homes could self-certify that they meet the medical exemption criteria. This allowed time for the Government to launch the NHS COVID Pass system and the self-certifications would expire 12 weeks after the launch.

New deadline

On 8 December 2021 it was announced that for those individuals who had self-certified before 24 December 2021, their self-certification could be used until 31 March 2022. This extension was put in place to allow time to obtain a formal proof of their medical exemption status or, if they are not formally exempt, to have the vaccine.

The new regulations are coming into force on 1 April 2022, and they confirm in order for an individual to continue working in a CQC-regulated care home from 1 April 2022 they will need to either:

1. Show proof of their formal medical exemption status (Guidance here); or
2. Be fully vaccinated against COVID-19.

This now applies to all frontline staff who work in CQC regulated healthcare. The CQC have provided information about their role in policing/rolling out the new regulations when they come into force on 1 April 2022, and who to contact if you have concerns.

Advice for care homes

Given the deadline for the regulations was moved previously, it may still move again. However, at present, care homes must work towards 1 April 2022 and review their workforce to see who still needs to provide evidence, particularly those individuals who have provided self-certified medical exemptions as these will expire on 31 March 2022.

From 1 April 2022, if you continue to employ individuals who have not provided proof of being (i) fully vaccinated, or (ii) formal medical exemption, this will be a breach the statutory restriction under the new regulations.

For unvaccinated individuals to comply with the regulations and be fully vaccinated by 1 April 2022, they will likely need to have had their first dose by 3 February 2022.

The NHS has published some helpful guidance for employers in healthcare in England relating to the implementation of the regulations.

Steps to take:

1. Speak to those individuals who are not fully vaccinated or are under a self-certified medical exemption, explaining the impact of the new regulations and discussing their situation i.e. are they awaiting a formal exemption, have they booked their vaccinations or do they not intend to have the vaccination (and are not medically exempt). They must be provided with a reasonable opportunity to be vaccinated or obtain a formal exemption.
2. If the individual chooses not to be vaccinated (or complete their course of vaccination) and is not medically exempt, you must explore redeployment into an alternative role where vaccination is not required (they will not need to enter the care home) i.e. an office based role or gardening.
3. If there are potential redeployment options, hold a meeting with the individual to discuss these and see whether they would be interested in the alternative role.
4. If there are no suitable alternatives, after a genuine search for alternative role has been carried out and discussed with the individual, steps may be taken towards dismissal, ensuring that a fair process is followed. This will reduce the risks of Tribunal claims (individuals with at least two years’ continuous service have the right not to be unfairly dismissed and there is no minimum service for discrimination claims).
5. A fair process must include:

• Meeting with the individual to discuss their vaccination status and the requirements under the regulations, and considering their position/reasoning. Be aware of any reasons that related to protected characteristics and could give rise to unlawful discrimination;
• Explore alternative roles or adjustments to the existing role;
• Invite to, and hold, a meeting warning them they may be dismissed if they are not vaccinated or exempt by 1 April 2022;
• Ensure they are offered a colleague or trade union representative to accompany them to the meeting;
• If you decide to dismiss:
  • Notice must not be served before 4 February 2022. If you serve notice before this date, this will be before the individual has had an opportunity to have their first vaccine in time. You could consider stating in the notice, that this could be revoked if an alternative found, medical exemption advanced, or employee is vaccinated.
  • The employment must not terminate before 31 March 2022.
  • Ensure notice served is at least the statutory minimum (or contractual if the notice period is greater).
  • If the notice period extends beyond 1 April 2022, consider temporary redeployment or leave until the termination date; and
• Offer the right to appeal the decision and follow an appeal process.

How can we help?

We would strongly advice before starting any dismissal process to seek advice on the risks first. We are more than happy to advise you through the process to ensure any Tribunal risks are reduced and a fair process is followed.

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