Covid-19 Vaccinations, The Legal Challenges For Care Providers

As the Government is set to announce compulsory vaccinations for care providers the employment challenges facing the care sector have just got significantly more complicated.

The issues surrounding vaccination were already tricky for care homes, but designating compulsory vaccination for just ‘care workers’ could lead to a plethora of issues, as many care providers will have flexible roles for many of their staff. The problem is further compounded as physical contact is far from the only way any Coronavirus is transmitted as most are transmitted by respiratory droplets – i.e. coughing. So it is therefore just as likely that a member of the support team could pass on the virus and a care provider might want to reflect this in their policies

BACKGROUND

Until now, the Government had not made vaccination compulsory and therefore it would have been difficult for employers to compel staff to have the vaccine as a condition of their employment. However, and following on from a recent consultation, the Government has proposed to amend regulations in respect of those working in older adult care homes to mandate that they receive their Covid-19 jab. Mandating the vaccine in care home settings is thought to be justifiable as a high uptake of the vaccine will help protect those most at risk.

COMPULSORY VACCINATION AND ITS CHALLENGES

Whilst there are undoubtedly legitimate reasons for imposing vaccination as a condition of employment, doing so doesn’t come without its risks. One risk is that compulsory vaccination could be viewed as a potential infringement of an individual’s human rights. It’s therefore important care providers demonstrate that any interference with a worker’s human rights (such as a vaccination request) is justified and proportionate in order to protect the health and safety of others.

Whether or not care providers will be able to insist all staff such as catering and administrative staff are vaccinated rather than front line carers and/or visitors only will likely depend on the outcome of the Government consultation.

Until then it would be prudent to assume that those who come into contact with residents less frequently or can more easily work in a socially distanced way may have stronger grounds to contest a request for compulsory vaccination.

Be aware also that certain medical conditions preclude some people from having the vaccine. If vaccination becomes a condition of their employment, they may feel they have no option but to leave and could, therefore, bring a claim for constructive dismissal plus a discrimination claim on the grounds of disability. Similarly, there has been debate about how safe the vaccine is for pregnant women and, as such, pregnant workers may also have legitimate concerns about the effects of the vaccine on themselves and their baby.

Additionally, with debate over COVID ‘passports’ and ‘certificates’ still ongoing, when asking workers if they have been vaccinated, it may be sensible to limit the information you request to a simple ‘yes’ or ‘no’. This is because, until clear guidance from the government is forthcoming, the situation regarding processing vaccine related data for GDPR purposes remains a little grey.

SOLUTIONS

As we wait for concrete guidance from the Government regarding compulsory vaccination and its related issues, there is still much you can do.

Speak openly with staff about the vaccine and encourage them to have it. Inform them of the benefits and listen to any concerns they may have. Consider what alternatives you could put in place for those unwilling to be vaccinated. Could they be moved to a different role, for example?

Ensure that your Covid-19 risk assessment is up to date and outlines the approach you propose to take should a worker refuse to have the vaccine.

Adopt a vaccination policy that includes the Government’s position on the vaccine in the social care sector, the health benefits and risks associated with the vaccine, vaccine training and human rights and discrimination concerns. Also, outline your Covid-secure measures such as testing, mask wearing and social distancing and ensure that this policy is maintained and reviewed in line with latest Government guidance.

All care providers want to make their settings as safe as possible and any perceived gaps in virus defence will naturally be an area of concern. Therefore, until clear guidance is forthcoming, decisions surrounding compulsory vaccination must be pragmatic and risk based.

Finally, it is likely there will be legal challenges to whatever the government proposes so we would advise keeping abreast of the issue and where necessary have a chat with your employment lawyer for guidance.