Employment Law Partner Paul Maynard discusses compulsory vaccinations for care home staff.
All care home owners and managers should, by now, be aware of the Government guidance published last month for the mandatory vaccination of staff working in care homes. The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (“the Regulations”) come into effect on 11 November 2021, which is just 6 weeks away.
Those that own, manage, work in or regularly visit care homes for work need to be aware of the Regulations and begin preparing for their implementation, if they have not done so already. The onus is on the Registered Person to ensure that everyone entering a CQC registered care home has been fully vaccinated against the Coronavirus (this does not currently include booster doses). The last date for care home workers to get their first dose, so they are fully vaccinated by the time the Regulations come into force, passed on 16 September 2021.
The list of those who may enter a care home under the Regulations includes:-
- Care home residents
- Those attending the care home to provide emergency assistance (eg to evacuate in the event of fire or flood).
- Those attending to provide urgent maintenance assistance (this would be in the event of serious electrical, gas or water supply failures, for example but would not cover routine maintenance work).
- A friend or relative of a resident or someone visiting a dying resident to provide comfort or support.
- Those that can produce evidence that satisfies the Registered Person that they have been vaccinated or that, for clinical reasons, they should not be vaccinated.
According to Government guidance, individuals can demonstrate their vaccination status using the NHS Covid Pass Service, either through the NHS app, the NHS website or by production of an NHS Covid pass letter. It is important to note that an individual’s NHS appointment card is not satisfactory evidence of vaccination status.
There are a range of circumstances in which an individual may be granted exemption from vaccination for clinical reasons. These are set out in the Covid 19 Green Book published by Public Health England. Guidance for proof of exemption is still being developed but only a letter from a GP or the NHS is likely to be sufficient evidence to comply with the Regulations.
From 11 November 2021, Registered Persons will need to have systems in place for checking and recording the vaccination status of all those entering a care home. Thought will need to be given to having check points at all entrances to the building.
Record-keeping must be sufficiently detailed to enable the vaccination status of the individual to be verified by a third party, such as the CQC, at a later date. Proof of vaccination or exemption status need only be recorded once so that individuals do not need to be re-checked on every subsequent re-entry but records should, nevertheless, be checked regularly to ensure they remain up-to-date. Record-keeping will be lawful under the Data Protection Act 2018 but care homes should update their data protection policies and privacy notices to reflect the new Regulations.
It is reasonable to expect that compliance with the Regulations will feature highly on the agenda of any forthcoming CQC inspections and the CQC are likely to use their full array of enforcement powers to ensure compliance.
It is very probable that those staff who fail or refuse to get fully vaccinated, having been informed of the requirements under the Regulations, can be fairly dismissed in accordance with the Employment Rights Act 1996. Before any dismissal takes place, it is important that the care home undertakes a fair procedure which will include giving the employee the opportunity of explaining their position, giving them fair warning of the consequences and considering whether any alternative courses of action may exist, such as allowing the employee to work from home. In reality, these circumstances are likely to be few and far between. There is no reason in principle why these processes cannot be concluded before the Regulations come into force.
It is fairly self-evident that care homes should already have plans in place to ensure compliance with the Regulations from 11 November. Crucially, staff should, by now, have been notified of the requirements and the process of obtaining and recording their vaccination status should be well under way. That should be extended to those contractors that regularly enter the home to provide non-emergency services.
Similar arrangements are expected to be rolled out for NHS staff and those in the domiciliary care sector in due course. In the meantime, many employers in the private sector are looking to introduce their own mandatory vaccination policies to ensure the protection of their customers and staff. Whilst this may well be possible different considerations apply. Those seeking to introduce such policies would be well advised to take advice from a specialist employment solicitor beforehand.