18th August 2021
New laws passed on 30 July 2021 (which come into effect on 11 November 2021) place obligations on registered persons and service providers to prevent anyone from entering a CQC-registered care home unless they have received a full course of a vaccination against Covid-19, are medically exempt from vaccination or fall into one of five other exempt categories. Updated guidance was issued on 16 August 2021. Walker Morris Employment specialist Lucy Gordon considers what this means for registered persons and service providers and the action that needs to be taken now.
The new laws apply to all CQC-registered care homes (meaning the provision of accommodation together with nursing or personal care) and require registered persons to ensure that with effect from 11 November 2021, people are not permitted to enter indoor premises unless they are fully vaccinated or are exempt. There is a fine of up to £50,000 for each individual breach.
The changes are made in the context that nearly 14,000 care home residents have died of Covid-19 since the beginning of 2021. Public Health England estimates that between 11 and 12.5 million infections and around 35,000 deaths have been prevented since the start of the vaccination programme.
The rules apply not just to those who are employed in care homes, but also those who need to enter care homes either as part of their roles (such as CQC inspectors) or to provide services (such as cleaners, hairdressers and medical professionals).
There is a grace period of 16 weeks prior to 11 November 2021 for individuals to complete their full course of the vaccine. Anyone not fully vaccinated or exempt should not be permitted to enter a care home on or after 11 November 2021.
16 September 2021 – Last date for individuals to have their first jab so that they are fully vaccinated by 11 November 2021
11 November 2021 – The date the new rules come into force
Employees and third parties who need to enter care homes will need to evidence one of the following:
The current guidance (16 August 2021) states that guidance for certification of medical exemption for vaccination is currently being developed and will be available on www.gov.uk shortly.
Equally, further guidance is expected regarding how those vaccinated outside of the UK can prove their vaccination status.
Vaccination status needs to be evidenced on the first visit to the care home only.
The immediate steps to take are as follows:
If, ultimately, employers are left with employees refusing to consent to a vaccine after the grace period expires, they will be required to consider re-deployment to other roles before considering dismissal, albeit that available roles are likely to be rare. If no such re-deployment is available, employers need to ensure that they follow a fair process, and consider on a case by case basis whether it is reasonable in all of the circumstances to dismiss for “some other substantial reason”. For example, although the guidance is in favour of pregnant employees receiving the vaccine, depending on the timescales involved, it could be reasonable to agree a period of paid or unpaid leave for an employee due to go on maternity leave imminently, if they intend to have the vaccine after the birth, rather than proceeding to dismiss.
Employees would receive notice, and perhaps outstanding holiday pay, but no other termination payments, such as a redundancy payment.
To date, most objections appear to be due to fears about the safety of the vaccine rather than for religious or other reasons. Employers may therefore want to consider assisting employees to obtain fact-based information about vaccines to help inform their decision-making.
At Walker Morris, we have specialist lawyers in our Employment, Regulatory & Compliance and Commercial teams who are experienced in advising on issues in the healthcare sector. We can help you with queries about the new rules, putting new policies and procedures in place, how to amend terms and conditions with third parties and how to ensure that you do not fall foul of data protection requirements. Please get in touch.