The Government has introduced new legislation which imposes compulsory vaccination for persons working or providing professional services in a care home setting. This is set out in legislation called The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021″.

Key information known on the compulsory vaccination legislation

The new compulsory vaccination 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. Individuals that can provide evidence that for clinical reasons they cannot be vaccinated are exempt.

When will the regulations take effect?

The regulations were made on 22 July 2021 and they will come into force on 11 November 2021.

The regulations will then be subject to a further 16-week grace period. The grace period is intended to give an opportunity for workers to receive both vaccinations over coming months and to mitigate the immediate impact for care homes.

Who will this apply to?

The regulations apply to all staff, employees, agency workers and all volunteers. This also includes anyone coming into the home to work e.g. healthcare workers, tradespeople, caterers, hairdressers, and any Care Quality Commission (CQC) inspectors.

The regulations will apply to England only. The regulations will be reviewed by the Secretary of State every 12 months after they come into force.

Are there any exceptions to the compulsory vaccination and who is exempt?

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 urgent medial work as required. The regulations do not apply to individuals under the age of 18.

What should employers do?

It is anticipated that further operational guidance will be published over coming months to assist employers. Employers may also find it useful to read through the explanatory memo produced by the Government which sets out the reasons for the changes and evidence relied upon.

In the meantime, employers can still be proactive and start to plan for the coming months. It may be helpful to carry out an initial survey of staff to ascertain who has been fully vaccinated. If the vast majority of staff have already received the vaccine, the regulations may not have such a significant impact. In contrast, if many staff have not been  vaccinated (and do not wish to be) it will enable a clearer understanding of the implications. It will also give organisations time to explore and communicate with staff.

This early communication and transparency is really important if you envisage that disciplinary action may need to be taken over coming months. Speaking to staff about the changes will lay the foundation for commencing any processes necessary. Employers should not wait until November (or next year) before starting this conversation as this is likely to cause delays to any processes that may be required.

In addition, employers should exercise flexibility and understanding towards employees. There may be very valid reasons as to why an individual has not been vaccinated. This may be overcome by providing support and assistance e.g. allowing an employee time to attend a vaccine appointment during the working day. If staff are not aware of the changes, or English is not their first language, it may be helpful to discuss and explain the changes to them.

Why are the changes being introduced?

The regulations are as a result of a consultation launched by the Department of Health and Social Care (DHSC) which ran from April to May 2021. This consultation 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.

On 19 July 2021, the Government updated a Social Care Working Group Consensus Statement. This identifies 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 Government has also published an explanatory memorandum which includes advice and scientific research from the Scientific Advisory Group for Emergencies (SAGE).

How are employers expected to collate this information?

It is not yet clear how employers are expected to monitor and record compliance. It remains to be seen whether employers will be subject to any prescriptive recording obligations. We anticipate that further guidance will be released over coming months.

Can you discipline or dismiss an employee that refuses to be vaccinated?

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.

Once the regulations are in force later this year, employers will 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 refuses to be vaccinated is in contravention of a duty or restriction imposed by or under an enactment. Employers may also argue that continued employment would be 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 also be mindful of discriminatory arguments that may arise, depending on the facts of the situation.

We will update you further as and when more information regarding compulsory vaccination in care homes is released by the Government. In the meantime if you have any employment issues you would like to discuss please contact a member of the Employment team.