Compulsory vaccination in care homes
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Compulsory vaccination in care homes
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On 15 March 2022, the Government revoked compulsory vaccination for health and social care workers. This follows the new Government strategy of “Living with Covid” and its consultation published in February 2022, which received over 90,000 responses, 90% of which supported revocation.
Background to the compulsory vaccinations
In November 2021, the Government introduced legislation which imposed compulsory vaccination for persons working or providing professional services in a care home setting. This was set out in the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021.
With limited exceptions, the regulations impacted upon all staff, employees, agency workers and all volunteers in care home settings. This included anyone coming into the home to work, e.g. healthcare workers, tradespeople, caterers, hairdressers, and any Care Quality Commission (CQC) inspectors.
This requirement was due to be extended to healthcare workers in April 2022 and this has also been revoked.
Why has this changed?
The Government guidance outlines that, when the original decision was taken to introduce COVID-19 vaccination as a condition of deployment, Delta was the dominant variant. It noted that the recent variant of Omicron is less severe and the percentage of those requiring emergency care or hospital admission is approximately half that of the Delta variant.
It also cites the vaccination programme as a key reason for the change, as this has resulted in improved immunity in the population. Data from the UK Health Security Agency (UKHSA) shows that 5 to 9 weeks after getting a booster, you are at least 85% less likely to end up in hospital than if you are unvaccinated.
The Government has also rolled out the spring booster vaccination programme to individuals aged 75 and over, those with vulnerable immune systems and care home residents.
Is this likely to change again?
Given the emphasis from the Government on “Living with Covid” and the focus on returning to normality, it seems unlikely that the Government will introduce any further changes which require compulsory vaccination in any industry sectors.
Can employers in the health and social care industry force employees to be vaccinated?
Whilst the regulations were in force, employers in the health and social care sector had a clearer pathway for taking disciplinary action against an employee that had not complied. Now that this requirement has been removed, disciplinary action resulting in the dismissal of an employee would be harder to justify.
The potential risks to an employer would be an unfair dismissal claim (for an employee with over 2 years’ service) and a discrimination claim if the individual has raised an objection which is related to a protected characteristic. In addition, a requirement for an employee to be vaccinated as a condition of receiving work could potentially amount to a repudiatory breach of contract giving rise to a constructive unfair dismissal claim.
If an employer proceeded to dismiss an employee that was not vaccinated, a tribunal would need to consider whether this decision was fair in the circumstances. Amongst other factors, it is likely to consider current evidence which shows that the Omicron variant is much milder. For example, the Department of Health and Social Care has published that, as the risks of the Omicron variant are now known and not as serious as anticipated, the mandatory vaccination requirement is no longer proportionate.
It would also consider evidence showing that individuals that test positive are far less likely to be admitted as seriously ill to hospital.
Employers that have implemented mandatory vaccination policies should carefully consider their rationale and justification for such requirements. In April 2021, the Equality and Human Rights Commission warned that blanket mandatory vaccination policies, applied inflexibly, are “likely to be unlawful” due to vaccination not being suitable for everyone as well as the discrimination risks.
Can employers encourage staff to be vaccinated?
Yes, it is very clear that employers can continue to encourage staff to be vaccinated. Employers are subject to the Health and Safety at Work Act 1974 which obliges them to take reasonable steps to reduce workplace risks.
There is some useful guidance published by the Government for employers on this topic.
The Health and Social Care Secretary has also reminded unvaccinated health and care workers of their professional responsibility to be vaccinated. The Government has specifically recommended vaccination for the following individuals:
- Adults living or working in a care home for the elderly
- Frontline healthcare workers
- Frontline social care workers
- Carers working in domiciliary care looking after older adults
- Those aged 65 years and over
- In the first phase of the vaccine roll-out, younger adults with long-term clinical conditions
- Adults previously classed as clinically extremely vulnerable (CEV)
Where can I find further information about requiring staff to be vaccinated?
Please see our blogs for further detail for employers to consider:
If you have any employment issues you would like to discuss please contact a member of the Employment team.