The Government has approved the controversial legislation requiring care home staff to be vaccinated against Covid-19. The Regulations will come into force on 11 November 2021. A 16-week grace period for care homes to prepare started on 22 July 2021.
What are the rules around care homes and the vaccine?
The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 stipulate that all CQC-registered care home providers (or more specifically the Registered Manager) must ensure that nobody enters the care home unless:
- The person is fully vaccinated against Covid-19 with a complete course of an authorised vaccine. The UK has a number of authorised vaccines, most of which require two doses; although one will apparently be available later this year involving only one dose (Janssen). Individuals may demonstrate their vaccination status by any of the following three routes, (i) the NHS app; (ii) the NHS website, or lastly (iii) the NHS Covid Pass letter.
- The person has provided evidence that satisfies the care home that for clinical reasons that person should not be vaccinated with an authorised vaccine. This means the care home can ask for evidence from an employee. However, unhelpfully there is no definition of ‘clinical reasons’ in the Regulations, however, further clarification is expected in due course. The Regulations do make clear the care home has the final decision as to whether the clinical evidence provided by the person is satisfactory. We expect this to be an area where disputes could easily arise between care homes and their employees.
- The person falls into an exception. The key exceptions from the rules are residents, relatives/friends of residents, under 18s and for those who are attending to provide urgent maintenance services or emergency services, like an ambulance paramedic.
For the vast majority of care homes, the majority of staff will already be fully vaccinated. However, each care home is likely to have a small minority who are not vaccinated which are likely to break down into two areas, those waiting for vaccination and those who have decided not to take the vaccination.
Those who do not wish to be vaccinated (or meet the clinical exemption) will face redeployment or dismissal unless they are willing to change their mind. The last date for care home workers to get their first dose so they are fully vaccinated by the time the regulations come into force is 16 September 2021.
Care homes will also be exempt from some of the usual rules prohibiting discrimination under the Equality Act 2010. As a result it will not be unlawful discrimination in relation to age, disability, religion or belief for a care home to ensure that a person over 18 who has not been vaccinated and is not medically exempt does not enter the care home. By way of example, this means an employee who does not want the vaccine based on religious grounds is not exempt from the law.
Employers should ensure a fair process is followed with any employee who does not wish to have the vaccine including explaining the law, listening to their reasons and exploring alternatives prior to any dismissal. For most care homes there will be little in terms of redeployment options available given most jobs involve entering the care home itself.
What should care homes be doing right now?
Importantly, care homes must take this change seriously. It is not optional but a mandatory legal requirement. Care homes should consider consulting staff (or their trade union if applicable) over the upcoming changes and the process they are going to follow which is likely to involve due diligence in understanding those who can work under the new rules and who cannot. Further and individual consultation will be required with those staff who are not planning on taking the vaccine to make sure they understand the implications of any decision made and to give them the chance to reconsider. Care homes should make sure they understand the reasons for refusal and where necessary point employees to resources to enable to staff to make informed decisions. For example, if an employee believes the vaccine is dangerous then the employee could be advised to speak with a medical professional to understand how dangerous it actually is based on the information available.
Can we expect any further developments?
We can expect this measure to be a long-term one. Regulation 7 requires the Secretary of State to review the operation and effect of these Regulations and to publish the report within one year after the date on which these Regulations come into force and within every year after that. The Government is already consulting on introducing this change to NHS staff.
It is clear that the Government believes Covid-19 is here to stay and further changes are required to look after the most vulnerable in society. Some will argue forcing employees to be vaccinated at this point of the pandemic is too far. Even a small amount of staff leaving the profession could impact care service delivery given many care homes already struggle to recruit and maintain adequate staffing. Only time will tell how much impact this change has on staffing and resident safety.