On 16 June, the Government announced legislation that will require everyone working in CQC-registered care homes in England to be fully vaccinated against Covid-19.
This announcement results from an extensive consultation process with care home staff, providers, residents and their families.
Findings show that although there has been a high uptake of the Covid-19 vaccine amongst care home workers and residents, the current level of vaccinated care home staff falls below the minimum level required to protect vulnerable individuals against the risk of Covid-19 outbreaks.
Responses received throughout the consultation process support the Government’s decision that mandatory vaccination in care homes is necessary, and further consultations will be conducted to consider extending mandatory vaccination to health and social care workers.
Who will be subject to compulsory vaccination?
All staff who work at care homes providing nursing and personal care in England will be required to receive both doses of the Covid-19 vaccine unless they have a medical exemption.
This includes individuals directly employed by a care home or care home provider, agency workers deployed at a care home, and care home volunteers, regardless of whether they work full-time or part-time.
Individuals required to work at care homes for other purposes, such as tradespeople, healthcare workers and beauticians, will also be subject to the mandatory vaccination requirement.
However, the following people will not be subject to compulsory vaccination:
- Care home visitors,
- Those under the age of 18,
- Individuals attending a care home in an emergency or those completing urgent maintenance work.
When will the legislation come into force?
This legislation is not yet in force but will be subject to Parliamentary approval as soon as possible and is set to be formally introduced from October 2021.
Once the legislation is introduced, there will be a 16-week grace period before the regulations become legally enforceable, to give care home workers ample opportunity to receive both doses of the Covid-19 vaccine.
What does this mean for employers?
Once the grace period has passed, employers of care home staff will be able to take a much stronger stance and enforce mandatory Covid-19 vaccination across the workforce.
The new regulations will provide care home providers with a legal basis for dismissing employees who refuse to be vaccinated without a medical exemption.
However, the scope and terms of the regulations are yet to be confirmed, and in any event, a full and fair dismissal procedure will need to be followed to avoid the risk of unfair dismissal claims from employees with at least 2 years’ service.
There may also be a risk of discrimination claims brought by care home staff who refuse to be vaccinated on the grounds of a religious or philosophical belief, which is a protected characteristic under the Equality Act.
Although the Government has indicated that such beliefs will not be treated as an exemption within the mandatory vaccination legislation, it is unclear whether employment tribunals will take the same approach.
Therefore, we advise waiting until the legislation is fully implemented and its scope is clear before making any changes to your current vaccination policy.
Seeking to enforce mandatory vaccination within your organisation before compulsory vaccination for care home staff becomes legally enforceable would incur a significant risk of unfair dismissal and discrimination claims.
Once the legislation is introduced in October, we will be able to provide more detailed advice on the specific implications of mandatory vaccination in care homes and the best approach to take for your organisation.