By Emma Burrows, Partner and head of Employment at Trowers & Hamlins (www.trowers.com)
Data published recently by NHS England (for the period to 13 June) showed that only 23% of London care homes had at least 80% of staff and at least 90% of residents fully vaccinated against Covid-19. In the South West that number rose to 49% of care homes, but for England as a whole the figure was only 40%. While numbers will have risen since then, the news that vaccination will become mandatory for care home staff by the Autumn is causing care providers concern.
Mandatory vaccination will apply to all care home staff, volunteers and anyone else entering the care home for work purposes (subject to certain exemptions). The requirement will also extend to any professionals visiting the care home, such as healthcare workers, tradespeople, hairdressers and CQC inspectors.
The new law will apply to care homes in England which are registered with the Care Quality Commission (CQC). It will not apply to other CQC services, or services not regulated by the CQC, such as domiciliary services and supported housing.
The new requirement is likely to be law from the end of October/beginning of November. All those covered by the Regulations will need to provide evidence of having had two doses of a Covid-19 vaccine, or evidence that they are exempt from vaccination.
The requirement to be vaccinated will not apply to residents of care homes, friends and family of residents who are visiting, those entering the home to assist with an emergency, visit a dying resident, to carry out urgent maintenance work, or those under the age of 18.
Individuals will also be exempt if they have any allergy or condition that the Green Book lists (COVID-19: the Green Book, chapter 14a – vaccination information for public health officials) as a reason not to administer a vaccine. The government intends to publish further guidance to describe the scope and process for granting exemptions.
PROVING VACCINATION STATUS
This is a matter of concern to care providers. The government expects people to show their vaccination status with the NHS app or, where that is not possible, via a web-based solution or a letter. There are concerns that evidence can be faked, especially if on paper.
THE IMMEDIATE CONCERNS
Recruitment is likely to be a big issue. Will people be put off applying for work in care homes due to the requirement to be vaccinated? In a sector which is challenged by recruitment, this potential knock on effect may be problematic.
Care providers will have to consider redeployment of those who aren’t vaccinated, and may need to redeploy them to services that are not covered by the proposed law.Those who can no longer work in care homes after the new law comes in may well seek work in services which are not covered by the mandatory vaccination requirement. Many care providers are concerned that those who receive domiciliary services or in supported living are no less vulnerable than those in care homes. It will be prudent for these providers to consider introducing mandatory vaccination at the same time as the new law comes into force.
There’s also the issue of staff who are currently unvaccinated. Care homes will have to consult with these individuals and ensure that the need to take the vaccine is properly explained to them. It is essential that this is done before any steps are taken to dismiss. Although the new law would give a fair reason for dismissal, the employee concerned could still bring a claim for unfair dismissal. Care homes will have to factor in the potential need for two separate meetings before the mandatory vaccination requirement comes in; one to explain and encourage take up of the vaccine, and one to dismiss if there is a continued refusal to be vaccinated.
POTENTIAL DISCRIMINATION CLAIMS
What about discrimination claims? It’s worth noting that the government’s response to the consultation makes it clear that there will be no exemption for those who refuse the vaccine due to religious beliefs. Many of the vaccine hesitant are identified as BAME. Allegations of dis- crimination that the dismissal of large numbers of staff sharing the same protected characteristic could be made.
It will still be open to an employee to argue that a mandatory requirement to vaccinate is discriminatory. Although being an “anti-vaxxer” is unlikely to be capable of being a religion or belief that gives someone protection under the Equality Act 2010 employees with certain medical conditions may be advised against or choose not to take the vaccine. Employers will be able to justify a mandatory vaccination policy on the grounds that they are legally obliged to have one but will need to act reasonably and might still have to defend high profile and expensive claims.
Care providers need to consider carefully how to implement the necessary changes including deciding which staff should be covered by the policy, and consulting with all staff. For more information on mandatory vaccination and the issues to look out for please join our webinar on the topic on Thursday 15th July.