As of 11th November 2021, compulsory vaccination legislation * will come into force requiring that anyone aged 18 years and over who is working in a care home must have had the full course of coronavirus vaccinations, unless they have a medical exemption. Care homes in England must ensure they are adhering to the legislation whilst also adhering to employment law when dealing with any staff who have not had the vaccinations.
*The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (SI 2021/891)
At the moment the
legislation requirement will apply to care homes in England that are;
- Registered with the CQC (Quality Care Commission) and;
- Provide accommodation for residents who require nursing or personal care (including younger vulnerable adults).
Further future Government consultation will decide whether to extend this requirement to other health & social care settings which would include the NHS and domiciliary carers. The consultation will also consider whether to make the flu vaccination mandatory as well.
Which individuals working in care homes are covered by the compulsory vaccination legislation?
Anyone who enters the indoor premises of a care home needs to be vaccinated, including permanent staff, agency workers and volunteers. It also applies to other professionals not employed by the care home such as healthcare workers, tradespeople, hairdressers & CQC inspectors.
Compulsory Vaccination Legislation - Exemptions
It does not apply to the following workers;
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- Those under the age of 18
- Those entering to assist with an emergency or carrying out urgent maintenance work
- Those working in the outside area of the care home & not entering indoors
- Those medically exempt
There will be no exemption on religious grounds or for any philosophical beliefs.
Who is classed as “medically exempt”?
We are still awaiting guidance being published from the Government to clarify this point but it is likely to cover anyone who is at risk of a serious allergic reaction to any of the vaccine’s ingredients.
There won’t be an exemption for pregnant women, those breastfeeding or trying to conceive as they have now been advised to have the vaccination. However, the recommendations on the type of vaccine pregnant women have may affect the timing of them so employers should be mindful of any delay and avoid discriminating against those who have been unable to have it by the deadline date.
What do care homes (or those with workers attending care homes) need to do now?
Don’t leave it until the legislation takes effect on 11th November; act now.
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- Encourage staff to have the vaccine, be firm with the communication, give them full details of the timetable for implementation and pre-warn them that not having the vaccination, unless exempt, could result in their dismissal.
- Unless there is a contractual right to be paid, you don’t need to pay your staff for taking time off to have the vaccination but offering to do so could help encourage them to take it. Either way, ensure you are being flexible and accommodating for staff to attend appointments.
- Start asking staff for evidence of their vaccinations. Under GDPR, employers in general need to be wary of asking for this information but care homes and those with workers entering care homes will be able to do so as they have a “legal obligation” to collect the data. Evidence could be a vaccination card or through the NHS app. Employers can then target direct communication to those who haven’t yet had their vaccinations or are unwilling to do so by reminding them that by failing to do so or delaying in doing so, unless they provide evidence that they are exempt, could result in them losing their job.
- Consider redeployment opportunities. Are there any other roles they could do for the organisation without the need to enter a care home? Or for those more office or admin based roles, can they work from home without the need to enter the care home?
- Plan accordingly with regards to your staffing levels because the legislation will require you to dismiss those who refuse to be vaccinated (who aren’t exempt).
- Staff need to have had their first vaccine no later than 16th September in order to be fully vaccinated by 11th November. Staff should be advised of this interim date now, so they’re fully aware that they need to act quickly if they are to be fully vaccinated by the deadline date. This may then enable you to start any dismissal processes prior to 11th November for those who refuse to get the vaccine, as staff won't be able to use the excuse that they weren’t aware of how quickly they needed to book their appointments in.
Recruitment
Make job offers conditional on being vaccinated (subject to any medical or other exemptions). Make it clear you still support the recruitment of those who are medically exempt to avoid any discrimination claims arising from your advertisements or recruitment processes. Don’t favour one applicant over another just because they are vaccinated if the reason the other applicant is not vaccinated is due to being medically exempt or has suffered a delay in being vaccinated relating to a protected characteristic, such as pregnancy.
Data Protection
The data being collected (information regards medical exemptions and vaccination status) is regarded as “special category data” under GDPR and The Data Protection Act 2018 therefore employers need to ensure they are handling the data in compliance with data protection principles and have an appropriate policy document in place detailing how they are processing the medical data received and how they are keeping it secure.
Process to follow for current workers who are not vaccinated
No matter the reason for a dismissal, employers must ensure that the process they follow is fair. We therefore recommend talking to us at Wirehouse about any employees you are looking to dismiss because of their un-vaccinated status. Any dismissal is likely to be for “some other substantial reason”. It would be deemed reasonable to invite the employee to a formal meeting, offer representation, ensure your conversations with the employee about their position were clear, consider any redeployment options and come to an informed decision based on all the facts. It’s likely to be deemed a reasonable expectation that you have pre-warned workers prior to the legislation taking effect if you’re looking at making dismissals shortly on or after 11th November. You’ll also need to be understanding of any reluctance on grounds of pregnancy, disability, or religion etc. and show a sympathetic approach especially when dealing with anyone who has delayed for these reasons. You may be able to shortcut the process for any workers with under 2 years’ service who can’t claim ordinary unfair dismissal but you still need to be mindful of any discrimination claims they could bring.
We would always recommend Wirehouse clients contacting our HR Advice Line for support on each and every case regarding compulsory vaccination legislation, and other HR concerns you may have. If you are not a Wirehouse client and need advice and support you can trust, please get in touch with our team of Employment Law and HR Consultants.
Article written by Jo Gill Wirehouse Employment Law Consultant.
