Updated Guidance On Compulsory Vaccination For Healthcare Workers In Care Homes

Compulsory vaccinations in the care sector

Under the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (Regulations), all Care Quality Commission (CQC) registered care homes must ensure (subject to limited exceptions) that only people who are fully vaccinated against coronavirus enter the care home.

This will mean that from 11th November 2021, anyone working or volunteering in a care home will need to be fully vaccinated unless they are exempt.

The CQC will require new and existing providers to have processes in place to monitor the vaccination status of staff, volunteers and contractors. The CQC will have enforcement powers to deal with any breaches of the rules.

Who is exempt from the requirements?

There are limited exceptions to the requirement to be vaccinated against coronavirus to enter a care home and they are as follows:

• Care home residents and their friends and relatives;
• Those providing emergency assistance;
• Those providing emergency maintenance;
• Emergency service personnel executing their duties;
• Those providing comfort or support to a resident following a bereavement;
• Under 18s; and
• Those employees who are clinically exempt.

In addition, staff who are not required to enter the building (e.g. gardeners or groundskeepers) are not covered by the Regulations.

Subject to these exceptions, the Regulations will apply to anyone who enters a care home as part of their professional responsibilities such as staff who are usually based at head office or off-site (e.g. trainers, HR), and those who may visit only occasionally such as hairdressers. It also includes job applicants.

How do I know if a worker or a volunteer falls under an exemption?

On 15th September 2021, the Government set out a temporary process to allow employees (or job applicants) to self-certify that they are clinically exempt from the mandatory coronavirus vaccine. Care home workers who are exempt will need to sign a prescribed form and give this to their employer as proof of their temporary exemption status. This temporary self-certification process will expire 12 weeks after the COVID Pass system is launched (i.e. on 23rd December 2021).

On 1st October 2021, the Government published guidance confirming that the NHS COVID Pass system is live. This means that all exemptions (following the end of the 12 week temporary self-certification period) will be clinically reviewed and will be confirmed by an individual’s doctor or clinician. The NHS COVID Pass will look and work in the same way as for those who have been fully vaccinated and the Pass will be available via the NHS App, the NHS website or a COVID Pass letter. The Pass will not show whether an employee has a medical exemption or whether they have been double vaccinated, merely that they have the NHS COVID Pass.

Short-term exemptions will also be available for those with short-term medical conditions and as an option that some pregnant women may choose to take. Exemptions for pregnant women will expire 16 weeks post-partum, in order to allow them to become fully vaccinated after birth.

Pregnant women can alternatively use MAT B1 certificates to show their COVID status if they choose to use a medical exemption. Pregnant women do not need to apply for a medical exemption NHS COVID Pass if they have a MAT B1 certificate. For pregnant women who use the MAT B1 form to show their exemption, the exemption will expire 16 weeks post-partum. This will allow them to become fully vaccinated after birth.

What about new recruits?

The mandatory vaccination requirements will apply to new recruits and care homes are advised to notify prospective staff of the requirements at the outset of the application process.

Do I need to keep any records?

Care homes will need to keep records of the vaccination or exemption status of staff (but not the clinical reason for the exemption) and those entering the care home and the date of the most recent check. Processing of data should be compliant with data protection obligations and care homes may need to update their data protection policies and retention schedules accordingly.

An employee is unwilling to have the vaccine – what should I do?

Some employees may be reluctant or unwilling to receive the vaccine. Ultimately, and subject to following a fair process (see below) these individuals may end up having their employment terminated because they cannot comply with the mandatory Government directed requirement.

Care homes need to assess the levels of take-up of vaccinations within their workforce as if it is likely that they will have to dismiss 20 or more employees at any one care home site (an ‘establishment’) then this will trigger legal requirements to conduct collective consultation with either a recognised trade union, workplace consultation body or elected employee representatives.

Care homes will need to follow a careful process with employees who are unwilling to have the vaccine against coronavirus. This will involve individual consultation (in addition to any collective consultation). Care homes will need to consider whether they have any vacant roles within their organisation which do not involve entering care homes and offer any employees the opportunity to apply for such roles before terminating their employment.

The Government guidance offers employers two potentially fair reasons for dismissals of staff who are unwilling to have their jabs who cannot be redeployed:

1. If the employee cannot continue to work in their position without the employer contravening a duty or restriction imposed by or under an enactment (illegality), or
2. Some other substantial reason of a kind as to justify the dismissal of an employee holding the position which the employee held (SOSR).

In addition to having a fair reason for dismissing employees, employers need to follow a fair process. The guidance suggests consulting with and warning employees, allowing them to be accompanied at meetings, taking and sharing notes of any meetings and providing a right of appeal against the decision.

Do compulsory vaccinations discriminate against employees?

There has been a lot of speculation as to whether employees with a relevant protected characteristic are being indirectly discriminated against by any workplace requirements to have a vaccine (see our blog on ethical veganism).

This may apply to those with a religious or philosophical belief that is inconsistent with vaccination or the coronavirus vaccine. The Regulations make no exemption for anyone who falls into this category and there is no scope, therefore, for care homes to make allowances for anyone in this category.

In the event of any claims in this regard, care homes would be able to point to the Regulations to explain their treatment of affected employees.

Disabled employees who are unable to have the vaccine for medical reasons are likely to be covered by the clinical exemption and so they will not be affected.

Government operational guidance on vaccination of people working in care homes

The Government operational guidance in Appendix A suggests that care homes should consider having a written vaccination policy covering time off for appointments, how data about vaccinations and exemptions will be handled, the approach to new recruits and agency staff and how those who cannot or are unwilling to be vaccinated will be dealt with.

The guidance also recommends that employers engage with their workforce early to provide information about the vaccination requirement and the potential consequences of not meeting the requirement on time. We can provide advice to care homes on how to engage with their workforce and how to carry out fair processes in order to minimise the risk of any potential employment tribunal claims.