Compulsory vaccination in care | 7 steps employers should follow with staff

Written by Toyah Marshall on 13 September 2021

The controversial Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 are set to make vaccination mandatory for anyone entering a care home as part of their work, with effect from 11 November.

While a number of organisations have challenged the lawfulness of the regulations, asserting (amongst other things) that they contravene s45E of the Public Health (Control of Disease Act 1984), they currently remain enforceable by the Care Quality Commission (CQC), and any flaws will likely be ironed out by the government in the coming months. As such, care homes will need to get prepared – and fast.

So what steps should employers take now? How should you deal with late uptakers, those that are resistant, and those who are medically exempt? And what employment law issues should you remain alert to along the way?

1. First, check whether the regulations apply to you

Whether the regulations apply to your setting or not depends on whether you are classed as a care home under section 3 of the Care Standards Act 2000. This defines care homes as:

any home which provides accommodation together with nursing or personal care for any person who is or has been ill (including mental disorder), is disabled or infirm, or who has a past or present dependence on drugs or alcohol.”

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2. If the regulations do apply, notify staff and obtain the necessary evidence

In order to ensure you can plan your workforce and take formal steps in relation to staff over 18 who are neither vaccinated nor medically exempt, you will need to obtain evidence of workers’ vaccination or medical exemption status as soon as possible.

You should provide written notification of the changes and what evidence you require to all staff that will need to enter your care setting, including contractors and other visiting personnel.

There are three forms of evidence that employers can accept as proof of vaccination:

  • The NHS app;
  • The NHS website; or
  • Their NHS COVID Pass letter, which can be requested using the online service.

Regarding proof of exemption, the government has now confirmed that workers will be able to temporarily self-certify that they meet the medical exemption criteria as outlined in the guidanceThe self-cert will expire 12 weeks after the NHS COVID Pass system has been implemented, at which point individuals will either have to get a medical exemption certificate through the NHS COVID Pass system or be fully vaccinated in order to enter the care home. If an employee lies about their status on the self-certificate, they may be disciplined.

In addition to making employees aware of the above, the letter should also:

  • Provide information on the vaccine and its benefits, referring to government guidance and other official sources, to help workers make their decision.
  • Invite workers to discuss the notification with you if they wish.

Template letters are available in the Related Content section above and are free to download.

3. Conduct a vaccination audit

Having reached out to staff, the information obtained will enable you to do a ‘vaccination audit’ of your workforce to determine who is and isn’t likely to be vaccinated by 11 November.

Your workforce will broadly fall into five camps:

  • Those who are fully vaccinated. Promisingly, 82.2% of care home staff are now fully vaccinated according to government figures. For these individuals, it will simply be a case of obtaining evidence of their vaccination status, as outlined above.
  • Those who have had a single dose or are planning to be vaccinated. Given the eight-week period between doses, the deadline for workers to receive their first dose will be 16 September, so if you haven’t begun communicating with your staff, you should make this a priority. If they are not vaccinated by the deadline, they could face dismissal.
  • Those who are choosing not to be vaccinated (and aren’t medically exempt). These individuals risk having their employment terminated if they haven’t had both doses by the deadline. The Department of Health and Social Care estimates that around 40,000 people could lose their jobs when the regulations take effect.
  • Those who believe they are exempt. Workers may have a medical condition that prevents them from being vaccinated. While they may be able to continue working, they may require changes to their role in order to keep them and others safe.
  • Those who will be under 18 on 11 November, who are also exempt.

4. Draw up a written policy

A written vaccination policy is advised, as this will help you to set out your approach and show that you are following the regulations. Your policy should cover:

  • Whether staff over 18 are entitled to time off work (with or without pay) to be vaccinated or obtain evidence of medical exemption;
  • Deadlines for providing evidence;
  • How data about vaccination or exemption will be processed;
  • How any formal policies will apply to staff who cannot comply with the vaccination requirement; and
  • How vaccination requirements of new recruits and agency staff will be addressed.

A template policy can be downloaded for free from the Related Content section above.

5. Deal with medically-exempt employees

If employees cannot be vaccinated for medical reasons – and can provide proof of this – they can still enter the care home. However, you will need to undertake a risk assessment to determine what additional precautions are needed to reduce the risk of transmission, such as requiring them to wear enhanced PPE or reassigning them to different duties to address the risk they pose by being unvaccinated.

Given your duty of care to avoid behaviours that are reasonably foreseeable to cause harm to others, it would be wise to seek health and safety advice regarding risk assessment if you employ someone who claims to be exempt.

Keep in mind that someone who is medically exempt is likely to have a condition that qualifies as a disability under the Equality Act 2010. As such, dismissing these individuals could amount to indirect discrimination and so any such decision would need to be a proportionate means of achieving a legitimate aim. Again, advice should be taken first.

6. Deal with any dismissals

Vaccination is a divisive issue, and many remain hesitant despite scientific evidence to show that COVID vaccines are safe and effective. In fact, according to one study, one in four care home workers disagree with mandatory vaccination.

If workers are unwilling to be vaccinated and are not claiming to be medically exempt, you should first discuss their reservations with them to see if their mind can be changed.

If they still refuse, consider whether there are any roles they could perform that don’t require them to be vaccinated. If there isn’t, and they have more than two years’ service, you may have no option but to consider dismissal.

Dismissing care home workers for refusing vaccination will be potentially fair on the grounds of either:

A fair procedure will still need to be followed, which will include providing written notice of a hearing, advising the employee that dismissal is a possible outcome, offering them the right to be accompanied, and providing your decision in writing (including the right of appeal).

Employers should make every attempt to encourage vaccination uptake through communication, reassurance and information sharing. However, if an employee is entrenched in their position and adamant that they won’t relent, dismissals could take place as early as 16 September.

It is advisable that the employee be allowed to work their notice, with any last date of employment not falling before 11 November in case anything changes in the meantime (i.e. they change their mind, or you discover they are medically exempt) which could affect the fairness of the dismissal.

7. Finally, revisit your recruitment policies

The regulations also apply to new recruits; only those that have had a full course of an MHRA-approved COVID-19 vaccine or are medically exempt from the requirement are eligible to work in the care home going forward.

Potential employees should be notified of this requirement at the start of the application process and appropriate checks undertaken.

Need advice, guidance and reassurance?

We strongly recommend seeking specialist advice before dismissing an employee or assessing an exempt employee’s safety requirements, as getting it wrong could result in unfair dismissal claims and scrutiny from the CQC.

For more information on how Ellis Whittam’s Employment Law and Health & Safety teams can help your care facility adapt to the new regulations efficiently, confidently and compliantly, call 0345 226 8393 or request your free consultation using the button below.

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