As you may be aware, the Government has announced that from 11 November 2021 all staff must be fully vaccinated against Covid-19 to work inside a care home in England, unless they are medically exempt.
We outline below the scope of this legislation and advise care homes on the best steps to prepare for the introduction of mandatory vaccination.
Impact of the legislation
For detailed information about how the new vaccination regulations will operate, please see the Government’s operational guidance document here.
However, an overview of the legislation is provided below.
Who is subject to mandatory vaccination?
The legislation on mandatory Covid-19 vaccination applies to all CQC-registered care homes in England who provide accommodation and nursing/personal care to residents.
It will soon be a legal requirement for all staff entering the inside of such care homes to provide proof that they have received both doses of the Covid-19 vaccine.
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 on a full-time or part-time basis.
Individuals required to work inside care homes for other purposes, such as tradespeople, healthcare workers, CQC inspectors and beauticians are also subject to mandatory vaccination.
However, the legislation does not apply to the following groups:
- Residents and visitors
- Staff under the age of 18
- Individuals attending a care home in an emergency or to complete urgent maintenance work
Medical exemptions
We are currently awaiting comprehensive guidance from the Government on the scope of medical exemptions and the evidence that must be provided.
However, an individual will most likely only be medically exempt from the legislation if they are at serious risk of suffering an allergic reaction to the vaccine.
There will be no exemption for employees who are pregnant, breastfeeding or trying to conceive, as the Joint Committee on Vaccination and Immunisation have advised that the Covid-19 vaccination is safe for most pregnant women.
There will also be no exemption on the ground of religious or philosophical belief.
Key dates
The legislation was created on 22 July 2021, but it is subject to a 16-week grace period before it becomes legally enforceable, to give care home staff sufficient opportunity to receive both doses of the Covid-19 vaccine.
Therefore, the legislation will be legally implemented from 11 November 2021 and all care home staff must be fully vaccinated by this date.
The Government have also advised that 16 September 2021 is the last date on which staff can receive their first vaccine to ensure they are fully vaccinated by 11 November.
How to prepare
1) Encourage employees to get vaccinated
The first stage of preparation would be to communicate the new legislation to employees and strongly urge them to have the Covid-19 vaccine if they haven’t already.
You should make employees aware of the key dates outlined above and warn them that if they fail to receive both vaccines by the 11 November deadline, their employment may be terminated.
If any employees are reluctant or refusing to be vaccinated, you should consult with them individually to address their concerns.
Providing individuals with accessible and reliable information about the Covid-19 vaccine may give them the reassurance they need to book their first appointment.
Information about the vaccine can be found on the gov.uk website.
Another strategy to encourage uptake of the Covid-19 vaccine in your workforce would be to offer time off work for employees to attend vaccination appointments.
2) Request proof of vaccination and medical exemption
You can also start asking employees to provide you with evidence that they have received both doses of the Covid-19 vaccine, using the NHS COVID Pass service.
A digital version of COVID Pass is available online via the NHS website and the NHS App, and a paper COVID Pass letter can be requested online or by calling 119.
An individual’s appointment card in not valid evidence of vaccination, according to Government guidance.
At this stage, it would also be advisable to request that employees, who believe they are medically exempt, disclose this information to you.
It will not be possible for such employees to provide you with proof of their exemption, as the prescribed form of evidence has not yet been confirmed.
Nevertheless it will benefit you to know who is vaccinated, who may be medically exempt and who is refusing so that you can consult effectively with your staff throughout the grace period.
It is important to note that any information concerning an individual’s vaccination status is special category personal data.
This means that you must notify employees of the reasons why you are collecting this type of information and data must be kept securely and confidentially, to comply with data protection regulations.
3) Create a process for unvaccinated employees
Medically exempt employees – You can continue to employ non-vaccinated employees after 11 November if they have provided the required evidence of their medical exemption.
However, you should consider whether you need to implement any additional safety measures for these individuals to protect against the increased risk of Covid-19.
For example, you could limit the amount of close contact they have with residents in their role or ask that they wear a face covering.
Staff under the age of 18 – Staff aged under 18 do not need to provide evidence of vaccination but they must be fully vaccinated by their 18th birthday to work inside a care home in England.
Therefore, you should consult with any employees who are about to turn 18 to ensure that they have both vaccination appointments booked in time.
Dismissing unvaccinated employees – It will be possible to rely on the new regulations to fairly dismiss care home employees who refuse to be vaccinated without a medical exemption.
For a dismissal to be considered ‘fair’ by an employment tribunal, it must be based on one of the potentially fair reasons set out in legislation and dismissal must be reasonable in the circumstances.
Dismissal in these circumstances will be based on two potentially fair grounds:
- Some other substantial reason
- Statutory illegality (this can be relied on once the regulations become legally enforceable on 11 November)
You must also follow a full and fair dismissal procedure to protect against the risk of unfair dismissal claims from employees with over two years’ service and discrimination claims from employees who have refused to have the vaccine due to a protected characteristic, like pregnancy or religious belief.
To defend such claims, you will need to demonstrate that you considered all options before resorting to dismissal, such as redeployment to a role outside of the care home or a period of leave if the employee becomes agreeable to vaccination after 11 November or has only had one dose.
You should consider the circumstances of each employee on an individual basis by meeting with them to discuss their reasons for not being vaccinated and warning them of the consequences.
Non-vaccinated employees can continue working in a care home until 11 November so any dismissal before this date should be with notice or pay in lieu of notice (PILON).
Any employees dismissed from 11 November onwards will need to be dismissed with PILON as they will not be in a position to work their notice period.
4) Consider future recruitment
You will need to make future job candidates aware that they must be fully vaccinated to work in your care home unless they can evidence a medical exemption.
The safest approach going forward would be to:
- Make job offers conditional upon the individual providing evidence that they have received both doses of the Covid-19 vaccine or that they are medically exempt; and
- Include Covid-19 vaccination as a condition of employment in their contract of employment, subject to medical exemption.
You should be careful not to recruit vaccinated individuals over those who are unvaccinated due to a medical exemption, as this may give rise to disability discrimination claims.
