Unvaccinated Workers - An OverviewOn 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 WorkersPeople 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).
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 OptionsThe 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.
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.