By Ian Pace, solicitor at national law firm Weightmans, advising on all areas of employment and discrimination law (www.weightmans.com)
WHEN IS THE DEADLINE FOR VACCINATION?
16th September 2021 was the last date for care home workers to get their first dose so they are fully vaccinated by the time the regulations come into force (on 11 November 2021).
WHO NEEDS TO BE VACCINATED?
The requirement applies to staff employed directly by the care home, full and part time agency staff, volunteers, and any professionals visiting a care home, such as healthcare workers, trades- people, hairdressers, beauticians and CQC inspectors.
Residents, friends and relatives of residents who are visiting, persons providing emergency assistance or urgent maintenance work in the care home, those under the age of 18 and those who only work in the outdoor surrounding grounds of care homes are not included.
ARE THERE ANY EXEMPTIONS?
Yes, for staff with certain allergies to the vaccine ingredients or conditions which are medically recognised as reasons not to administer the vaccine. Staff who think they might be exempt for a clinical reason will be able to get an exemption certificate under government plans currently being developed.
WHAT RECORDS DO WE NEED TO KEEP ABOUT OUR STAFF’S VACCINATION STATUS?
Records confirming that relevant evidence has been provided must be kept, securely by the registered manager (or equivalent person) in compliance with current data protection regulations.
People entering a care home only need to show their vaccination status on the first occasion. Checks may be carried out more often if preferred, but this is not a legal requirement. There is no requirement to record the medical reason for an exemption.
CAN WE LET OTHER MEMBERS OF STAFF KNOW THAT A COLLEAGUE IS UNVACCINATED?
An individual’s vaccination status should not be broadly shared with other members of staff, unless this is necessary for management purposes, and should not be retained on record for longer than required.
WHAT HAPPENS IF WE GET THIS WRONG AND ALLOW UNVACCINATED EMPLOYEE TO WORK IN OUR CARE SETTINGS?
The Care Quality Commission (CQC) is responsible for compliance and enforcement and it will take a ‘risk- based and proportionate approach to enforcement’. The CQC has civil enforcement powers, from issuing a warning notice through to making an application to court to suspend or cancel registration, where risk of harm to residents is perceived to be serious. Criminal enforcement against the provider or registered manager may be appropriate in the most serious of cases.
HOW DO WE DEAL WITH STAFF WHO REFUSE TO BE VACCINATED? CAN WE DISMISS THEM FOR NON- COMPLIANCE?
Your first step should be to offer support and information. The government has promised a range of resources to help with these conversations.
After 11th November, employers will be empowered by law to dismiss employees who refuse to be vaccinated (unless they are medically exempt). We strongly recommend that you take legal advice at an early stage and certainly before a decision is made to dismiss.
WHAT PROCEDURE MUST WE FOLLOW TO DISMISS A MEMBER OF STAFF?
The only requirement is that a ‘fair procedure’ is followed. The employee must be consulted and warned of the risk of dismissal if they do not evidence vaccination or exemption within specified timescales. They must be allowed to attend a meeting to discuss the reasons they should not be dismissed, accompanied by a col- league or Trade Union representative if they wish. Then, they must be issued with a written outcome and offered a right of appeal against dismissal. A fair process will also explore any potential redeployment opportunities as an alternative to dismissal.
WHAT DO WE DO IF AN EMPLOYEE PRODUCES EVIDENCE OF VACCINATION OR EXEMPTION AFTER DISMISSAL?
If this happens after dismissal but before their appeal hearing, you could reinstate the employee and offer back-pay. Alternatively, it may be appropriate to defer dismissal and place the employee on unpaid leave to give them extra time to get vaccinated or an exemption certificate. It is important to act consistently and fairly in all circumstances. Ask for legal advice if you are unsure.
CAN WE ASK A POTENTIAL EMPLOYEE ABOUT THEIR VACCINATION STATUS AT INTERVIEW STAGE?
You not only can, but must, since it will be unlawful to employ an unvaccinated individual when the legislation comes into force if they are not medically exempt. Job offers should be conditional on the applicant being able to prove vaccination status/exemption. The requirement to be vaccinated should be in new recruits’ contracts of employment for the avoidance of doubt.
DO WE HAVE TO AMEND THE TERMS AND CONDITIONS OF EXISTING STAFF TO REFLECT THE CHANGE?
It is not essential to issue a new written statement of particulars to existing staff. The new statutory requirement will apply from 11th November 2021 regardless.
However, there may be long-term benefits to including mandatory vaccination in contracts. If legislation is later amended to include boosters or annual vaccination, for example, it will be easier to enforce. It also helps achieve consistency on the issue between existing and new staff. If you do decide to amend T&Cs, it may be easiest to issue existing staff with a letter of amendment – and to update standard written particulars for new recruits only.
ARE THESE REGULATIONS LIKELY TO BE CHALLENGED?
As you may have heard, a legal ‘judicial review’ challenge to the regulations has been proposed. The law firm behind the challenge argues that the government has acted unreasonably or beyond the scope of its powers by introducing mandatory vaccination, and that the requirement should therefore be unenforceable. The law firm’s letter to the government is publicly available and may potentially be produced by employees in support of a grievance or a refusal to be vaccinated. It is important to note that no formal legal proceedings have yet been started and, for now, you should assume that the introduction of the new vaccination requirement will go ahead as planned.