Following on from our previous article where we discussed new legislation being brought in by the Government making it unlawful for workers to enter care homes who have not received both vaccinations from 11th November 2021 onwards, we review what practical steps employers should be taking relating to unvaccinated workers. This is not limited to care home employers but also extends to those who employ staff who enter care homes for other work related purposes such as engineers, hairdressers, beauticians, CQC inspectors etc.
Unvaccinated Workers – An Overview
On 11th November it becomes unlawful to allow workers into care home premises who have not been fully vaccinated against COVID19 unless medically exempt or in cases of emergency.
If you own a care home or have workers who enter care homes as part of their role, we would urge you to familiarise yourself with the full details specified in the previous article (link above).
Temporary Medical Exemptions & Unvaccinated Workers
People working or volunteering in care homes who have a medical reason why they are unable to have a COVID19 vaccine will be able to self-certify that they meet the medical exemption criteria. Workers will need to sign a specific Gov.uk self-cert form, and provide this to their employer as proof of their temporary exemption status. This means they will be entitled to remain working during this time.
This will only be a temporary measure for 12 weeks until the Government has launched the “NHS COVID pass system”. Once this system is in place, workers will need to apply for a formal medical exemption. The main issue here for employers is that the ability to self-certify for 12 weeks on medical exemption grounds will require no proof of a medical condition so employers may have to take their workers word for it. As the Government seem happy for employers to accept it without further investigation, employers are unlikely to have justification for requiring any further specific details. It effectively delays the unlawfulness of allowing those temporary exempt individuals into the care home setting for that extended 12 week period until it is decided whether they qualify for a formal medical exemption.
Who is Medically Exempt?
The list is not exhaustive but it is foreseen that those who could be included are individuals who are;
- Receiving end of life care where vaccination is not in the individual’s interests.
- With learning disabilities or autistic individuals, or with a combination of impairments which result in the same distress, who find vaccination and testing distressing because of their condition and cannot be achieved through reasonable adjustments such as provision of an accessible environment.
- With medical contraindications to the vaccines such as severe allergy to all COVID-19 vaccines or their constituents.
- Who have had adverse reactions to the first dose (for example, myocarditis).
There will also be “time-limited exemptions” for those with short term medical conditions (i.e. those on medication that may interact with the vaccination or pregnant women).
What do I need to be doing now, ahead of 11th November?
- You should have already begun a process of collecting the vaccine status of individuals who work for you, who are required under law to be double jabbed by 11th November 2021.
- You should be in conversations with those unwilling to be vaccinated and be confident you understand exactly why they are not vaccinated and whether it is their intention to remain unvaccinated.
- Consider whether you have any alternative positions that don’t require entry to care homes and if so, begin a fair process of selection in offering redeployment to those unvaccinated members of staff.
- In order to be fully vaccinated by 11th November, staff must have had their first vaccine by 16th September. This date has now passed therefore you should be entering a process with individuals who haven’t received their first dose yet to find out why. You’ll then need to decide whether you will be authorising the delay in their vaccinations and how you will be arranging their time off work until vaccinated (i.e. with annual leave, paid leave or agreed unpaid leave) or whether you need to dismiss them.
- You should be separating out those with valid excuses for any delays with those who are just outright refusing to be vaccinated and have a plan in place for each individual.
- You should be looking at arranging individual formal meetings with unvaccinated staff and considering at this point whether they will be dismissed ahead of 11th November.
Unvaccinated Workers – The Options
The employment process we advise to follow will be a potential dismissal for “some other substantial reason (SOSR)”. We advise as a minimum;
- Encourage staff to be vaccinated, unless exempt.
- Pre-warn of the consequences of not being vaccinated by 11th November (potential dismissal).
- Understand each individual staff members reasoning for not being vaccinated on time and whether they intend to be vaccinated.
- Discuss alternatives such as redeployment or advise where this is not a possibility.
- Formally invite to a meeting ahead of 11th November to discuss their vaccine status.
- Dismissals with notice where there is no alternative work and no good reason for the individual’s delay in being vaccinated.
In an ideal world you would undergo this SOSR process so that their notice period took them up to, or as close to, 11th November as possible. Some organisations might decide to end employment sooner, giving staff the option of working extended notice up until 11th November or on the proviso that should the Government change it’s stance, staff will be reinstated.
If you are adopting the latter approach, be mindful of recruiting replacements where you could end up with too many staff members should this be the case. It would be best therefore to line up any dismissals as close to 11th November as possible. Remember though that it is unlawful for staff to enter the premises of care homes on or after 11th November therefore any notice periods or employment lasting beyond this date would need to be paid despite the staff member not being able to physically do their job.
If you have an employee who is unwilling to be vaccinated and they have under 2 years’ service (taking into account any period of notice on top) then you may be able to short cut the process. However be mindful of any discrimination risks; for example if someone hasn’t been vaccinated yet due to pregnancy, religious reasons etc. Wirehouse clients should contact our HR Advice Line before short-cutting the dismissal process, or entering any dismissal process.
Risks of Delaying Action
- If not dismissed on or before 11th November, you will incur costs of keeping staff on suspension whilst the process is underway (unless your contract stipulates otherwise) or paying out notice pay for notice that cannot be worked by the individual staff member given they are not allowed to be on site.
- It could be deemed that you acted unreasonably in not engaging with staff beforehand and not fully informing them of the consequences of not being vaccinated, with a risk of unfair dismissal claims.
Collection of vaccine status data is regarded as “special category data” meaning you need to be extra cautious about how you are handling this data. Make sure you have an appropriate policy document in place in addition to your standard employee privacy notice detailing your processing of the data. You should also ensure you are keeping the data secure and that you are only sharing it with those necessary. For more information on data obligations, you may want to consider signing up to our GDPR Advice Service or you can seek support from the ICO (Information Commissioner’s Office).
If you are not a Wirehouse client and need guidance surrounding unvaccinated workers in your care home business, get in touch with our expert Employment Law team today.