Mandatory vaccination in care homes: “no jab, no job” to become lawPrint publication
The government announced on 16 June 2021 that new regulations to be laid before Parliament will require all workers in CQC-registered care homes to receive two doses of vaccines against Covid-19 unless medically exempt. This follows a period of consultation in which views were sought from providers, workers and families about how best to protect those in care homes given the disappointing initial uptake of vaccinations in care home workers.
Draft regulations are to be placed before Parliament as soon as possible with the new laws intended to apply from October 2021. Workers will have a grace period of 16 weeks in which to receive both doses of a vaccine unless medically exempt. This will apply to all employees and workers directly employed or engaged by care home providers, all agency workers engaged in such settings, and volunteers.
The requirement also extends to those individuals coming into care homes for other reasons, such as healthcare workers, tradespeople, hairdressers, beauticians and CQC inspectors, amongst others.
The development raises significant practical concerns for employers, including the following:
- how to manage refusals;
- how to police those entering the home;
- what new policies and procedures may be required; and
- whether changes are required to commercial terms with tradespeople and employment businesses supplying agency workers.
Why are the new laws being introduced?
The Social Care working group of SAGE advised earlier in 2021 that a vaccination uptake rate of 80% of staff and 90% of residents would be required in order to provide a minimum level of protection in care homes. As at April 2021, 94.1% of all eligible people living in older adult care homes had received at least one dose of a vaccine. However, the national statistic for staff was 78.9%, which hid a number of significant regional variations – some regions had take-up of under 70% and all 32 London boroughs had take-up of under 80%. There are a significant number of homes (around 35%) that do not meet the SAGE requirements.
Which care homes are impacted by the changes?
Whilst the consultation originally proposed that the rules would only apply to care homes with residents aged 65 and over, the intention is that the new regulations will apply to all CQC-registered care homes providing nursing and personal care.
Will this be extended to other health and care settings?
The government is proposing to announce further consultation regarding extending mandatory vaccination to other health and care settings such as the NHS and domiciliary care.
What do care home providers need to do now?
The new laws will present significant challenges for an already stretched and weary sector. The British Medical Association has said that the changes will bring “new ethical and legal implications” and the National Care Forum, which represents not-for-profit care homes has said that the rules relating to other individuals entering care homes amount to an “unworkable door policy”. There are reports that many staff, in a sector already suffering chronic resource shortages, would rather quit than receive the vaccine.
The priority for care homes will be to use the period prior to October 2021 to push education about the vaccine and to try to encourage voluntary take-up as much as possible, rather than having to consider legal processes to redeploy or potentially even dismiss staff in the event that they do not consent to receiving the vaccine once the grace period has ended. The government has produced useful materials for employers to share with staff . Employers could also consider inviting medical professionals to talk to staff about their concerns.
Difficulties may arise around those who are medically exempt, and employers will need to treat such cases with caution and remind staff not to discriminate against those who may be suffering from disabilities and serious medical conditions. Information should be treated in the strictest of confidence and employers will need to examine and perhaps refresh their data protection policies and procedures regarding handling and processing such data. Religious or personal reasons are undoubtedly going to play a part in the reluctance of some workers to receive a vaccine and again these will need to be addressed sensitively and carefully.
If, ultimately, employers are left with employees refusing 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 in the care industry. If there are no viable alternatives, employers would need to ensure that they followed a fair process before potentially dismissing employees for “some other substantial reason”. Employees would receive notice, and perhaps outstanding holiday pay, but no other termination payments, such as a redundancy payment.
The new rules will inevitably present recruitment challenges and employers will need to make vaccination requirements clear in advertisements and offer documentation, but are unlikely, due to disability discrimination legislation, to be able to check vaccine status of applicants until the offer stage.
We can help
At Walker Morris, we have specialist lawyers in our employment, regulatory 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.