Keoghs Insight

Author

Michelle Marriner

Compulsory Covid-19 Vaccination of Care Home Employees: What does it mean for staff, care home employers and the protection of the vulnerable?

Blogs26/08/2021

An amendment to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 was approved by Parliament on 22 July 2021 and means staff working in care homes registered with the Care Quality Commission for residents requiring nursing or personal care must be fully vaccinated with both doses of the Covid-19 vaccination, unless they have a medical exemption. The new legislation is due to come into force on 11 November 2021 and has been delayed to give the care home sector time to comply with the new regulations.  

Staff and residents in care homes were prioritised at the outset of the vaccination programme because they were considered the most vulnerable. The intention of this legislation is to keep reducing the risk to the vulnerable.

Those going into care homes to do other work, for example healthcare providers, tradespeople, hairdressers, beauticians and CQC inspectors will also be required to comply with the regulations and be fully vaccinated, unless they have a medical exemption. However, emergency services staff, people under the age of 18, or those entering care homes to do urgent maintenance work will not be required to comply with the new regulations.

Dr Mary Ramsay, Head of Immunisation at Public Health England, said: “Vaccines are the most important tool we have against Covid-19 and they have already saved thousands of lives. Having a high level of protection in care homes will reduce the risk to this very vulnerable population.

Approved Covid-19 vaccinations have met strict standards of safety, quality and effectiveness set by the independent Medicines and Healthcare Products Regulatory Agency (MHRA), but many staff, and indeed members of the public generally, wish to wait for more evidence before making a decision about being vaccinated.

People may also refuse the vaccine on philosophical or religious grounds, or due to medical characteristics which are protected under the Equality Act 2010. There is no legal exemption to refuse the vaccine on religious grounds, but exemptions do apply for medical reasons. 

More than a quarter of care home staff do not believe Covid-19 vaccines should be mandatory, according to a survey by carehome.co.uk. 

NHS England’s latest figures show 94.4% of eligible residents and 80% of staff are already double vaccinated; however, a quarter of care homes have not met the target of 80% of staff and 90% of residents having had their first dose.

The Government predicts 7% of care home workers will refuse the vaccine, equating to an estimated 40,000 of the 570,000 members of staff working in care homes in England.

What are the likely implications for staff and care home employers and what impact will this have on these very vulnerable residents? Will staff who refuse be automatically terminated from their employment and will care home providers see claims that the dismissal was unfair or discriminatory?

There is going to be further consultation on whether to extend the legislation to other health and social care settings. The care home sector where vaccination is legislatively mandated will be better placed to defend claims brought by employees.

Introduction of Staff Vaccination Policies is going to be crucial. Policies will need to document the requirement for vaccination and the consequences for failing to do so. Refusal should be dealt with in accordance with those policies and the company’s own policies and procedures regarding disciplinary proceedings.

Employers are going to need to work with and communicate with staff about these policies and the mandatory requirement to be double vaccinated. Employers will need to keep data, in line with GDPR, relating to vaccinations to help identify those staff who have not been vaccinated. 

The process to dismiss needs to be fair, and consideration needs to be given as to whether other steps could have been taken that would reasonably avoid dismissal. Equality and substantial merits of the case will need to be considered (s98(4) ERA 1996).

ACAS recommends encouraging staff to be vaccinated, but not make it mandatory.

Employers are also going to need to assess potential shortfalls in staffing as a result of any dismissals that take place.   

These new regulations could cause staff shortages in a sector in which recruitment is already difficult. Forcing staff to be vaccinated could see a huge number of people leaving the sector. There is clearly a balance to be struck between the protection of vulnerable residents against plunging care homes into a staffing crisis as that can also put residents lives in danger.  

The cost to recruit and train replacement staff could be significant for care home providers. The Government cites the approaching end of the furlough scheme as an indicator that there may not be difficulties recruiting, due to high numbers of individuals who will be inevitably looking for work.

CQC Monitoring and Enforcement Consequences for Non-Compliance by Care Home Providers:

Detailed information on how care homes can prepare for and meet the regulations can be found in the Department of Health and Social Care Operational Guidance.

https://www.gov.uk/government/publications/vaccination-of-people-working-or-deployed-in-care-homes-operational-guidance 

The CQC will be monitoring vaccination and Covid-19 statistics of staff in care homes and they will be adding a question to their provider information return (PIR) about how the company is assured that those they employ and deploy within their service are vaccinated in line with Government regulations.

The CQC says that any enforcement activity by them which is generated as a result of a breach of the amended regulations will be undertaken on a proportionate basis, based on the assessment of the impact on quality and care and people’s safety in line with their existing enforcement policy. The CQC says they will treat each case individually and based on its own merits. That is ultimately what care home providers should also do when making decisions about each individual member of staff who refuses to be vaccinated.

For more information, please contact Michelle Marriner.