The government has confirmed new regulations are coming into force in England introducing a mandatory requirement for care home workers to have received double COVID vaccinations from 11 November 2021.
The announcement included details of a 16-week grace period starting on 22 July to allow care home workers to have their first vaccine by 16 September and second dose in time for the new regulations taking effect.
What is the new mandatory vaccine requirement for care home workers?
The new regulations will make it compulsory for Care Quality Commission-regulated care providers in England to allow entry into care homes only to those who can prove they have had a complete course of an authorised coronavirus (COVID-19) vaccine. In practice, this means frontline care home workers must have had both doses of the COVID vaccine to be able to work in a care home setting from 11 November 2021.
The Department of Health and Social Care has advised it is launching a further consultation into extending the requirement to other health and social care settings.
Exemptions to the mandatory vaccine requirement
The new regulations will not apply to care home residents, visitors of residents such as friends or relatives, under 18s, clinical trial participants and those providing emergency assistance or urgent maintenance work within the care home.
There is also an exemption for individuals who can provide evidence that they are medically exempt from the COVID vaccination.
The government has also noted that vaccination may not be clinically appropriate during pregnancy and that this will be considered within the guidance on exemptions.
Those refusing the vaccination on religious grounds are not included within the stated exemptions.
How should care sector employers prepare for the changes?
Data suggests a significant proportion of UK care workers have not yet been double vaccinated. NHS England data to 13 June 2021 shows only 40% of care homes have at least 80% of staff fully vaccinated.
Shortages of care workers is already a crisis issue for care providers. The new regulations are expected to further exacerbate existing staffing shortages in the sector, as workers opt to leave their jobs rather than have the vaccine, or where employers find they have no option other than to dismiss workers for refusing to meet the requirement.
Care providers are now being urged by the government to use the grace period up to November to take action to educate and encourage their frontline staff to have the double vaccination. The onus has been put on care sector employers to ensure staff are aware of the new requirement by signposting to information, and to advise workers in good time of the potential risk of losing their job if they opt to decline to be fully vaccinated.
It is advisable to consult with staff (and trade unions if relevant) to discuss the organisation’s response to the new regulations.
In preparation for the changes, care home operators should create a staff vaccination policy outlining the employer’s and workers’ rights and responsibilities. This should include the consequences for failing to get vaccinated, and staff who refuse vaccination should be dealt with in accordance with the employer’s vaccine and disciplinary policies.
It is also advisable to conduct a vaccination audit to identify which staff members are fully vaccinated, which are single-dose vaccinated, which are exempt under the regulations and which are refusing to comply. This is a critical exercise to help manage staffing levels, target communications and discussions during the grace period to those workers who are not yet meeting the requirement, and to determine if redeployment or dismissal may be necessary courses of action where workers are opting not to be fully vaccinated.
Care providers are also advised to ensure HR and management are trained on the new regulations and the implications for their recruitment and health and safety practices and general workforce management procedures.
What if an employee is refusing the vaccine?
In cases where a worker is refusing the vaccination, it may be appropriate to first consider redeploying the individual into a role away from frontline care duties. However, this may not always be plausible in the care sector given the nature of the job roles.
In any case, redeployment should be considered at the earliest opportunity to minimise the risk of unfair dismissal claims should employment be eventually terminated due to the new regulations.
Should care homes dismiss workers who refuse the vaccine?
The regulations appear to give grounds for care sector employers to dismiss frontline care staff who refuse to comply with the requirement by not having the double vaccine and where they do not fall within one of the exemptions. For example, workers who are medically exempt from taking the double vaccine would not be affected by the new rules.
If redeployment is not a plausible option, care providers may have to move to follow a fair dismissal process to terminate the employment of unvaccinated care workers under section 98 of the Employment Rights Act 1996 (ERA 1996).
Section 98 deals with fairness of a dismissal, specifically that fairness is dependent on the facts and circumstances and whether the employer acted reasonably or unreasonably in treating the reason as sufficient to warrant the dismissal of an employee. Once the new regulations come into force, under section 98, it is likely that it would be deemed fair for the employer to terminate employment if the individual could not continue to work in the position without breaching a duty or restriction imposed by or under an enactment. In these circumstances, dismissal is likely to be fair on the basis that the legislation would effectively remove the burden on the employer to show the double vaccination requirement was a reasonable management instruction.
However, employers should remember that wider employment and discrimination law protections continue to apply, and employers are advised to approach each case individually to ensure all other factors are taken into account before taking a decision to dismiss and to avoid unfair dismissal or unlawful discrimination claims.
Employees with more than two years’ continuous service may be able to bring a claim for unfair dismissal if the employer failed to follow a lawful dismissal process (which should be outlined in company vaccination and disciplinary policies) or if they can show there were other steps the employer reasonably could have taken that would have avoided the need to dismiss, such as redeployment.
What about care workers who have only had a single dose by the cut off date?
It may be that some workers have received only a single dose by the time the regulations come into force, and are awaiting their second dose. A vaccine audit will help to identify where this is an issue.
If this is the case, employers should take action to discuss the situation with the affected individual and document any resulting agreement, which may involve placing the individual on unpaid leave from the cut-off date until they have received the second dose, rather than pursuing a dismissal.
Should care homes only hire vaccinated workers?
A specific area of risk for employers in enforcing the new regulations will be unlawful discrimination in recruitment.
While some workers may be medically exempt from taking the vaccination, in practice employers may recognise the risk of claims from residents and their families if the decision is made to hire someone medically exempt but unvaccinated, and opt to hire only vaccinated individuals.
When recruiting care workers, employers must ensure their candidate selection process does not risk unlawful disability discrimination, for example when choosing between a vaccinated and medically exempt unvaccinated applicant.
Don’t forget data protection
A further consideration for employers resulting from the new regulations is that storing and retaining data relating to workers’ vaccination status is classed as special category personal data for GDPR purposes.
Employers must in this instance conduct an impact assessment to identify and minimise data protection risks.
Care homes with low vaccine uptake among staff risk losing workers and further staff shortages if they are unable to persuade workers to take the full vaccination before the cut off date. This could well result in care home closures on safety grounds.
In light of existing staffing issues in the sector – exacerbated in recent years by Brexit and the end of EU free movement – the government may opt to extend the grace period if take-up of the vaccine remains low among care workers, but for the time being, care sector employers are now under considerable pressure to prepare for 11 November 2o21.
DavidsonMorris are experienced legal advisers to the health and social care sector. Our employment lawyers and HR specialists are working with employers to provide holistic support with meeting the new requirements through risk assessments, workforce management guidance and drafting policies and procedures that comply with the new regulations and minimise legal risk. For help and advice, speak to our experts.
Last updated: 28 July 2021