Care sector employers are now under a legal obligation to ensure all care home workers in England are fully vaccinated by the cut-off date in 16 weeks.
From 11 November 2021, Care Quality Commission-regulated service providers of nursing and personal care services in England must not allow entry into care homes for anyone who has not been fully vaccinated, unless they fall within one of the limited exemptions.
The most onerous impact of the new regulations on care providers is ensuring all care home staff have both vaccine doses to be able to work under the new legislation.
The new rules apply to frontline healthcare workers, including employees, agency workers, volunteers as well tradespeople.
The government is also considering whether vaccinations should be compulsory for other health workers, including those in the NHS.
Who is exempt?
Care providers will also have to familiarise themselves with the exemptions to the requirement. These include individuals who are medically-exempt from the vaccine; emergency services personnel; relatives, friends and visitors of care home residents; under 18s; and those providing emergency assistance or urgent maintenance work within the care home.
The government has also stated guidance will be provided regarding pregnant women, as vaccination may not be clinically appropriate during pregnancy.
Anyone refusing to take the vaccine for religious reasons would not fall under the exemptions. However, it would be prudent for employers to be aware of the ‘protected characteristics‘ which continue to be protected from unlawful discrimination under the Equality Act 2010.
Preparing for the changes
Employers have been given only a 16-week grace period to prepare for the new requirements and ensure care home workers must have had their first and second vaccines. This is not a lot of time given the complexity of the legal and practical implications of the new legislation.
Care providers are advised to take action immediately to ready their organisation and their workforce with the following steps.
Engage with staff & representatives
Responsibility now lies with care sector employers to communicate and engage with workers and any trade union representatives, and ensure their staff are aware of the new requirements.
Employers should direct workers to government information about the new rules and make clear to workers the potential for disciplinary action or dismissal for refusing to comply with the legislation.
Develop a vaccine policy
A workplace vaccination policy should be developed stating the employer’s and workers’ rights and responsibilities. This should include the disciplinary consequences of not being fully vaccinated.
Carry out a vaccine audit
Conducting a vaccine audit will help identify the vaccine status of those workers affected by the new regulations. With this information, employers can tailor and focus engagement with those workers who are not yet fully vaccinated.
For example, if a worker will have only received a single dose by the implementation date, discussions will need to take place with the individual as they may need to be redeployed or placed on unpaid leave until they have been double-vaccinated.
Employers will also need to ensure they are GDPR compliant in handling and storing data relating to vaccination status as this is classed as special category personal data for GDPR purposes.
Train management & HR
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 to be vaccinated and they are not exempt under the regulations, it may be appropriate to first consider redeploying the individual into a role away from frontline care duties, if possible, or to consider temporarily ceasing their duties until they are fully vaccinated.
In light of the regulations, dismissing 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, may be deemed lawful, provided the employer has followed a fair dismissal process.
Where a discrimination claim is brought against the employer, employers will need to be able to argue that their vaccination policies serve a legitimate aim and any discrimination caused is proportionate to meeting that aim.
Recruiting care workers under the new rules
While initial focus for employers will be on meeting the new rules by 11 November, the regulations create a long term issue when recruiting care workers.
Care sector employers should proceed with caution if implementing a policy of hiring only fully vaccinated workers. Since workers may be exempt from the requirements, such as being medically exempt from taking the vaccination, 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.
Countdown to the deadline
Care home providers have reacted to the new law with frustration and discontent. Those with low vaccine uptake among workers face further strain on staffing levels and existing care worker shortages being exacerbated as people 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. This could plausibly result in care home closures on safety grounds.
As the deadline approaches, it would not be uncharacteristic for the government to revise its original deadline and extend the grace period to allow employers sufficient time to comply with the obligations, but for the time being, care sector employers remain under considerable pressure to prepare their organisations and workforce for 11 November 2021.
This will also remain an area of continued legal risk for employers, with the potential for discrimination claims that may flow from this new legislation.
Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Anne Morris is the founder and Managing Director of DavidsonMorris. A highly experienced lawyer, she is recognised by Chambers & Partners and the Legal 500 UK as a trusted adviser to multinationals, large corporates and SMEs, delivering strategic immigration and global mobility advice. Anne is also an active commentator on UK immigration and HR matters.
