No Jab, No Job: Everything Care Homes Need To Know About Compulsory Vaccinations

From mid-November, all care home workers and volunteers will need to be fully vaccinated against Covid-19 unless exempt. Expert employment solicitor Laura Kearsley, from law firm Nelsons, explains everything care homes need to know about the new requirements.

Under the Health and Social Care Act 2018, all Care Quality Commission (CQC)-registered care homes must ensure – subject to limited exceptions – that only people who have received two coronavirus jabs enter the premises.

This means that, unless exempt, anyone working or volunteering in a care home will need to be fully vaccinated from 11 November 2021.

The CQC will require new and existing providers to have processes in place to monitor the vaccination status of staff, volunteers and contractors. The independent regulator will also have enforcement powers to deal with any breaches of the rules.

A 16-week grace period began on 22 July to allow care homes to liaise with staff and prepare for when the rules come into force. Any care home workers who are not yet vaccinated will need to have received their first dose by 16 September 2021.

Who is exempt from the requirements?

There are limited exceptions to the requirements, including care home residents and their friends and relatives; those providing emergency assistance or maintenance; emergency service personnel executing their duties; those providing comfort or support to a resident following a bereavement; and under 18s.

In addition, staff who are not required to enter the building – such as gardeners or groundkeepers – are not covered by the regulations.

Those who have clinical reasons why the vaccination is not appropriate will be able to seek a clinically-approved exemption from this requirement. Guidance on this has not yet been provided.

Subject to these exceptions, the regulations will apply to anyone who enters a care home as part of their professional responsibilities. This will include staff who are usually based at head office or off site, such as trainers or HR professionals, and those who may visit only occasionally, like hairdressers.

The regulations will also apply to job applicants and new recruits. Care homes are advised to notify prospective staff of the requirements at the outset of the application process.

What is acceptable vaccination evidence?

Vaccination status can be evidence using the NHS app, the NHS website or a Covid Pass letter. A vaccination appointment card is not acceptable. The government is due to provide further guidance for care homes that have staff who were vaccinated outside the UK.

Do I need to keep any records?

Care homes will need to keep records of the vaccination or exemption status of staff, volunteers and those entering the premises – but not the clinical reason for the exemption. Processing of data should be compliant with data protection obligations and care homes may need to update their data protection policies and retention schedules accordingly.

An employee is unwilling to have the vaccine – what should I do?

There will no doubt be some employees who are reluctant or, indeed, unwilling to receive the vaccine. Ultimately, and subject to following a process, these individuals may end up having their employment terminated because they cannot comply with the requirement.

Care homes will need to follow a careful process with employees who are unwilling to have the jabs. This will involve individual consultation, in addition to any collective consultation.  Care homes will need to consider whether they have any vacant roles within their organisation that do not involve entering the grounds and offer any employees the opportunity to apply for such roles before terminating their employment.

Employees with more than two years’ service could potentially claim unfair dismissal if they don’t think their employer has followed a fair process or made a fair decision to dismiss them. The government guidance offers employers two potentially fair reasons for dismissals of staff who are unwilling to have their jabs who cannot be redeployed:

1. If the employee cannot continue to work in their position without the employer contravening a duty or restriction imposed by or under an enactment (illegality); or
2. Some other substantial reason (SOSR) of a kind as to justify the dismissal of an employee.

In addition to having a fair reason for dismissing employees, employers need to follow a fair process. The guidance suggests consulting with and warning employees, allowing them to be accompanied at meetings, taking and sharing notes of any meetings and providing a right of appeal against the decision.

Care homes need to assess the levels of take up of vaccination within their workforce. If it is likely they will have to dismiss 20 or more employees at any one care home site, this will trigger legal requirements to conduct collective consultation with either a recognised trade union, workplace consultation body or elected employee representatives.

Do compulsory vaccinations discriminate against employees?

There has been a lot of speculation as to whether employees with a relevant protected characteristic are being indirectly discriminated against by any workplace requirements to have a vaccine.

This may apply to those with a religious or philosophical belief – such as ethical veganism – that is inconsistent with vaccination or the COVID vaccine. The regulations make no exemption for anyone who falls into this category and there is no scope, therefore, for care homes to make allowances for anyone in this category.

In the event of any claims in this regard, care homes would be able to point to the regulations to explain their treatment of affected employees.

Disabled employees who are unable to have the vaccine for medical reasons are likely to be covered by the clinical exemption, so they will not be affected.

Is there anything else I need to be aware of?

The government has issued guidance in relation to employment responsibilities. This suggests care homes should consider having a written vaccination policy covering time off for appointments, how data about vaccinations and exemptions will be handled, the approach to new recruits and agency staff, and how those who cannot or are unwilling to be vaccinated will be dealt with.

The guidance also recommends that employers engage with their workforce early to provide information about the vaccination requirement and the potential consequences of not meeting the requirement on time.