Vanessa Latham, partner and employment law expert at BLM (www.blmlaw.com), discusses the rules on vaccination and visitation for care providers
As we experience continued restrictions as the Government attempts to control the spread of COVID-19, the rolling out of the vaccine programme gives us all hope for the future. However, the avail- ability of the vaccine gives rise to a new set of challenges for care settings in relation to staff and family visits. Can and should care homes prevent staff from working or family for visiting if they refuse to have the vaccine? Could care homes make it a requirement for a person to be vaccinated before entering a care home? One of the first arguments that will no doubt be raised is that, if all the residents and most of the staff have been vaccinated, what is the harm? We know that the vaccines are not 100% effective and there is still increased uncertainty at the time of publication of this article around the decision to delay the second dose. There is a risk of contracting COVID- 19 even after vaccination, particularly to care home residents who are likely to be elderly or clinically vulnerable. Little is known about the risks of transmitting the virus after vaccination. Care homes still have an obligation to continue to reduce the risk to residents and staff to the lowest reasonable level.
Recent research by the National Care Association (NCA) suggests that, whilst 50 to 60 per cent of care home workers are likely to consent to being vaccinated, 17 to 20 per cent will not, and the remainder are undecided. If this proves to be accurate, it means as many as one in five care home staff will not be vaccinated, presenting a significant challenge to care providers.
Requiring an employee to be vaccinated on a mandatory basis raises a number of contentious legal issues. Under the Health and Safety at Work Act 1974, employers have a duty to ensure a safe working environment and must take reasonable steps to reduce workplace risks. Citing this guidance, businesses such as Pimlico Plumbers, a large London-based plumbing firm, have plans to rewrite workers’ contracts to make a vaccination a requirement for continued employment.
As it stands, an employer cannot force a member of staff to under- take a medical procedure. Whilst it may be considered reasonable management instructions to ask staff to be vaccinated, some individuals may have perfectly legitimate reasons for refusing the vaccine, for example, the current guidance is that pregnant women or those intend- ing to get pregnant should not be given the vaccine. There may be other medical or religious reasons for refusing and care homes could fall foul of discrimination legislation if they take any action to require those staff to be vaccinated. Any care home dismissing or disciplining a member of staff for refusing the vaccine is likely to face an Employment Tribunal claim so before any such action is taken, a home must be certain that they have taken every possible step to ensure that individual can continue to work safely without the vaccine. The NCA has recently indicated that it is seeking legal advice on whether (and presumably in what circumstances) staff can be required to have the vaccine.
It will be important to remember that some employment law protection applies to workers as well as employees, so the same approach must also be applied to agency and bank staff. When recruiting new staff, it will be crucial to know whether they have had the vaccine. However, if the potential staff member has not been vaccinated, care
homes will need to be careful they do not breach discrimination law by refusing employment to someone who has declined the vaccine.
The issue therefore remains contentious and in the meantime care homes should consider what steps can be taken to allow staff to continue to work safely without the vaccine, such as:
- Can the strict use of PPE and social distancing be implemented?
- Could testing be undertaken on a regular basis, for example lateral flow tests that provide results in under 30 minutes?
- Could work be modified to avoid or minimise direct contact with residents or other staff?
A person’s role cannot be unilaterally changed by an employer, but small changes can be made to duties or the way in which those duties are undertaken. If a significant role change would be required, an employee should be invited to agree to it.
For visitors, the difficulties are less likely to be legal, but will be similarly contentious. The upset and distress caused if relatives are unable to visit loved ones and inevitable negative press and social media attention can be just as difficult to deal with. The first challenge will be in determining whether visitors have been vaccinated; a reasonable step would be to ask visitors to bring their NHS card confirming that they have been vaccinated when they visit.
A blanket ban on visitors who have not been vaccinated would be unreasonable. As with staff, there may be perfectly legitimate reasons why a visitor has not been vaccinated, so care homes should consider whether any individual who has not been vaccinated can continue to visit safely through use of PPE, social distancing and lateral flow testing. It would only be if a visitor refused to comply with those safety requirements that a care home should, as it stands, reasonably prevent them from visiting.