In November 2021 the Government introduced legislation which imposed compulsory vaccination for persons working or providing professional services in a care home setting. This is set out in the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021.
The legislation means that persons in the regulated activity of providing “residential accommodation together with nursing or personal care in a care home” must ensure that any non-resident over the age of 18 does not enter the residential accommodation unless that person has provided evidence that they have been fully vaccinated.
These regulations are now being accompanied by the new, broader requirement for relevant healthcare staff to be vaccinated from 1 April 2022. We have published a blog with further details of compulsory vaccination in the healthcare sector, alongside a timeline of key dates.
The regulations were made on 22 July 2021 and following a 16 weeks grace period, they came into force on 11 November 2021.
Broadly, the regulations impact upon all staff, employees, agency workers and all volunteers. This includes anyone coming into the home to work e.g. healthcare workers, tradespeople, caterers, hairdressers, and any Care Quality Commission (CQC) inspectors.
The regulations refer to a “registered person” in respect of a “regulated activity” in a “care home”. These terms require a careful consideration and employers should seek advice if they are not certain on their specific obligations. The regulations will be reviewed every 12 months after coming into force.
The regulations follow consultation by the Department of Health and Social Care (DHSC) between April and May 2021. This focused upon workers deployed in care homes with older adult residents (i.e. any care home in England registered with the Care Quality Commission with at least one person older than 65 living there). Over 13,500 responses were submitted.
In July 2021, the Government updated a Social Care Working Group Consensus Statement. This identified that care homes for older adults have been significantly impacted by the COVID-19 pandemic. This is attributed to a variety of factors, including the vulnerability of the resident population, the close contact nature of mixing within such settings and the risk of these settings providing outbreaks. The statement concludes that ensuring very high levels of vaccination for vulnerable residents and those that care for them, is an “appropriate public health intervention”.
The exemptions are very narrow and provide a limited list of exceptions.
They do not apply to anyone that can provide evidence that, for clinical reasons, they should not be vaccinated with any authorised vaccine.
In addition, the requirements do not apply to the actual residents within care homes, friends and relatives that visit, or those visiting a dying resident. Unvaccinated persons may also enter to provide urgent maintenance assistance, emergency assistance or medial work as required. They do not apply to individuals under the age of 18.
ACAS has published some guidance on the requirements and what steps employers should take. The Government has also produced some useful operational guidance. This includes a link to a Vaccine Communications Toolkit for Adult Social Care, which employers may find it helpful to review.
By this point in time, most employers will now be aware of which members of staff are vaccinated, and which are not. Many employers started consulting with staff last year in order to identify any specific concerns raised by employees and, where possible, to address these issues.
If it has not already been done, employers should inform staff on leave, such as maternity leave or long-term sick leave, of the requirement for vaccination or exemption to ensure that they are informed of the requirements and it does not delay them being able to return to work.
Employers should continue to implement appropriate procedures for checking that all persons entering the care home, including staff members, are fully vaccinated or exempt. The guidance indicates that providers may decide to have a single check point where all individuals are verified, or multiple check points at the various entry points to the care home.
The guidance outlines that employers may wish to consider implementing a vaccination policy. Amongst other points, this should include details of what the requirement is, how data will be processed, and how this will be addressed for new staff.
Whether it is appropriate to take disciplinary action will depend on the facts of the matter and employers should express caution before commencing a disciplinary process. Employers must still follow a fair disciplinary process and they cannot simply dismiss an employee that doesn’t comply. Employers should comply with their usual policies and procedures.
As the regulations have been in force since November 2021, employers have a clearer pathway for taking disciplinary action against an employee that does not comply. There would be stronger justification for an employer to argue that an employee that has refused to be vaccinated is in contravention of a duty or restriction imposed by or under an enactment. Employers may also argue that continued employment is in breach of the legislation. It is also possible that failure to comply with a requirement to be vaccinated could give rise to a fair dismissal for “some other substantial reason” depending on the situation.
Employers should be mindful of discriminatory arguments that may arise, depending on the facts of the situation. Employers will therefore need to consider whether anyone that refuses to be vaccinated could be moved into an alternative role where vaccination is not required, for instance, a role outside of the care home, before reaching a decision to dismiss. Where redeployment is being considered for several workers, employers should use objective and non-discriminatory selection criteria.
Employers have to be mindful of both their general obligations to employees under their contracts of employment and their specific obligations in relation to data protection. A person’s vaccination status is classed as special category data – it is their private health information. In order to comply with the data protection requirements, an employer’s use of this data must be fair, relevant and necessary for a specific purpose. In addition, this information should only be processed where there are legitimate grounds to do so.
Employers are more likely to be able to justify requesting this information as the regulations have been in force since November 2021, and the requirement relates to the individual’s role. This information should be kept secure and should be limited to those that reasonably need to know the information, for example those in HR or the employee’s line manager. Employers may also need to update their staff privacy notices and consider how long vaccination data will be retained under data protection law.
If you have any employment issues you would like to discuss please contact a member of the Employment team.