The relevant Regulations requiring compulsory COVID-19 vaccinations for those working or deployed in CQC-registered care homes in England come into force on 11 November 2021. Since we first wrote this article in July, there have been some very important developments on this issue, in particular as to how workers evidence that they have either had the COVID-19 vaccinations or are medically exempt; vaccinations outside of the UK; data protection considerations; risk assessments; and guidance for care homes on acting lawfully towards staff, both in relation to unfair dismissal and under the Equality Act 2010.
The official guidance for care homes ‘Coronavirus (COVID-19) vaccination of people working or deployed in care homes: operational guidance’ (the Operational Guidance) was originally incomplete and updated piecemeal, but was updated again on 19 October 2021. Whilst the updates are substantial and useful, one or two outstanding issues remain and therefore this may still not be the final version of the Operational Guidance.
What the Regulations require
The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (the Regulations) stipulate that anyone working or deployed to work in a care home in England which provides accommodation for people needing nursing or personal care, and which is registered with the Care Quality Commission (CQC), must evidence that they have received the complete course of doses of an authorised vaccine against COVID-19 unless they are medically exempt. Whilst the Regulations apply only to England, this also includes people who live in Scotland or Wales but work in a CQC-registered care home in England. The CQC has provided a statement setting out its approach to the Regulations, which can be seen here.
The Regulations will apply to all workers requiring indoor access to care homes in England, including: the employer’s staff, agency workers, contractors or self-employed people hired to carry out work in a care home (e.g. tradespeople, occupational therapists or hairdressers). The Regulations also cover people who are not employed by the care home but who need to enter for work, for example doctors, nurses, CQC inspectors, volunteers, work experience students and job applicants attending an interview on site. However, individuals entering the premises to assist in an emergency or to carry out urgent maintenance work, persons under the age of 18, clinical trial participants or a friend or relative of a resident of the care home who is visiting, visiting a dying resident or providing comfort and support to a bereaved resident do not need to be vaccinated. Please see the current Department of Health and Social Care (DHSC) Operational Guidance, which was last updated on 19 October 2021: Coronavirus (COVID-19) vaccination of people working or deployed in care homes: operational guidance.
Upon attending the premises, individuals must be able to demonstrate that they have received a complete course of their COVID-19 vaccination, unless a medical exemption applies. A complete course of vaccination is two doses of the vaccine, but this does not include the booster dose.
Although booster doses are not currently included in the Regulations, managers are strongly advised in the updated Operational Guidance to encourage workers to take up booster vaccines if eligible.
Evidence of vaccination status
The Operational Guidance states that NHSX is considering how the NHS COVID Pass service could be used to support registered persons (care home managers/providers) and staff to check and demonstrate vaccination status. In the meantime, individuals can demonstrate that their vaccination status in England by using the current NHS COVID Pass service (an individual’s NHS appointment card cannot be used as proof of vaccination status).
This can be done in three ways:
- the NHS App: An individual’s vaccination status can be found within the NHS COVID Pass service of the NHS App. According to the Guidance this will provide proof of the individual’s vaccination status and verify that they have had a complete course of a COVID-19 vaccination;
- the NHS website – NHS.uk: The NHS COVID Pass can be accessed via the NHS website. This displays the same information as is contained within the NHS app via an online web page – and can be accessed via Get your NHS COVID Pass; or
- the NHS COVID Pass letter: An individual can get an NHS COVID Pass letter sent to them in the post, which shows that they have been vaccinated against COVID-19. They can do this by:
- requesting a COVID Pass letter online via Get your NHS COVID Pass or
- calling 119 (for those vaccinated in England only)
This letter can then be presented by the individual to the care home to demonstrate their vaccination status. Individuals may need to wait five working days to receive this and should account for this to ensure they are able to demonstrate vaccination status by the time the Regulations come into force on 11 November.
Individuals need to have an NHS number and have been vaccinated in England, but they do not need to be registered with a GP surgery or have an NHS login to get an NHS COVID Pass letter. Previously it was unclear, but it now seems that the COVID Pass App or website can distinguish between vaccination status and Covid status (i.e. where you have had Covid in the last 180 days, or have received a recent negative Covid test). This is important for care homes since unless there is a medical exemption, the Regulations require the complete course of two vaccinations rather than reliance on any other type of Covid status.
Those vaccinated in Scotland can find information on how to obtain a record of their COVID-19 vaccination status at nhsinform.scot.
Those vaccinated in Wales can find information on how to obtain a record of their COVID-19 vaccination status at gov.wales.
The DHSC initially provided temporary template letters to allow those people working or volunteering in care homes who have a medical reason why they are unable to have a COVID-19 vaccine to self-certify that they meet the medical exemption criteria. The individual then shows this to their employer as proof of their temporary exemption status. This is a temporary process which was in place until the new NHS COVID Pass system was launched. See here for the DHSC instructions and template letters:
What constituted medical exemptions was still not entirely clear because the template letters only give examples. It will not be clear until the clinical review process is complete whether a person was correct to self-certify.
This temporary guidance made clear that once the NHS COVID Pass system was launched, care home workers would need to apply for a formal medical exemption through that process and the self-certification would expire 12 weeks after its launch. It is now known that the 12 weeks expires on 24 December 2021.
Since 1 October 2021, individuals have been able to apply formally for a medical exemption, when DHSC Guidance was published which launched the COVID Pass system. This Guidance clarifies:
- that the template self-certification letters are only valid until 24 December 2021;
- therefore, from 25 December 2021, if individuals are unable to get vaccinated because of a medical exemption, they will have to use the NHS COVID Pass service to prove this.
- that those who apply for medical exemption via the NHS COVID Pass service will also get a letter which will explain that the person is medically exempt from vaccination, and that this letter should be used by those who work or volunteer in a care home to prove that they are unable to be vaccinated. By contrast, the NHS COVID Pass in itself does not make the distinction between medical exemption and vaccination status. This will be important for care homes who may want to make decisions as to how tasks are allocated for those who have not been vaccinated;
- short term medical exemptions may be available, although it is not clear how this will be monitored by the care home; and
- some of the examples of medical exemptions from COVID-19 vaccination which could include individuals who are:
- receiving end of life care where vaccination is not in the individual’s interests
- those with learning disabilities or autistic individuals, or with a combination of impairments which result in the same distress, who find vaccination and testing distressing because of their condition and vaccination cannot be achieved through reasonable adjustments
- those with a medical reason for not having the vaccine due to a severe allergy to all COVID-19 vaccines or their constituents (presumably those set out in Chapter 14a of the Public Health England (PHE) ‘green book‘) or
- those who have had adverse reactions to the first dose (for example, myocarditis)
For pregnant women a MATB1 may be shown instead as proof of COVID exemption, but the exemption for pregnant women expires 16 weeks after the birth of the child. They are then expected to get fully vaccinated.
Updates to the Operational Guidance on 19 October 2021
Since the above DHSC NHS COVID Pass guidance on proving inability to get vaccinated was published on 1 October, the main/original Operational Guidance on the vaccination of people working or deployed in care homes was updated on 19 October, with many additional helpful points clarified for care homes. The main points/expanded guidance relate to:
1. Exemption due to vaccination received outside the UK
Individuals who have been vaccinated outside of the UK are currently not recognised as having received the full course of vaccinations under the Regulations. Therefore, for the time being these individuals can continue to self-certify as being medically exempt by virtue of having been vaccinated abroad using the guidance on temporary medical exemptions for COVID-19 vaccinations for people working or deployed in case homes.
The NHS COVID Pass process does not apply to individuals vaccinated abroad and therefore for them the self-certification will continue until further notice, and the exemption will not expire on 24 December 2021.
2. Medical exemptions
Although the guidance on “Temporary Medical Exemptions” and “Proving you are unable to get vaccinated” refer to a number of different factors (set out above) which may give rise to a medical exemption, the updated Operational Guidance still refers to the Green book on Immunisation against infectious disease, Chapter 14a and clinical advice from the Joint Committee of Vaccination and Immunisation (JCVI). It is still not clear what such clinical advice will entail.
3. Other measures
The Operational Guidance states that it is important for managers to carry out risk assessments for those individuals who are exempt from COVID-19 vaccinations. It is fundamental in care homes to evaluate the potential risk of the spread of COVID-19 whereby vulnerable residents could be put at substantial risk of those workers who are exempt from the vaccination. Further measures may need to be put in place for example, additional PPE or changing specific duties. Managers should also bear in mind that medically exempt individuals might also be clinically extremely vulnerable.
4. Recording vaccination or exemption status
Checking vaccination or exemption status refers back to the Operational Guidance’s section on demonstrating evidence (i.e. currently the NHS COVID Pass service). However, there then follows a large section for care home managers/providers (“registered persons”) on recording that evidence. They must keep a record of the vaccination or exemption status both of staff members and of those entering the care home (unless exempt) and the date that information was last checked. The information only needs to be recorded once on the first time of entering and may be referred back to. However, care homes will have to check their records are up to date and will be able to share it with the CQC. The reason for any medical exemption does not need to be recorded, just the fact that they are medically exempt.
5. Data protection considerations
A large section of the updated Operational Guidance seeks to ensure that care homes have considered how recording vaccination or exemption status will be processing personal data, which must be in accordance with data protection law and therefore supported by appropriate amendments and updates to data protection policies and other data protection documentation. These records of medical exemptions and vaccination status constitute the processing of “special categories” of personal data under the Data Protection Act 2018 and UK GDPR. Therefore, the Operational Guidance reminds care homes that Data Protection Impact Assessments and Appropriate Policy Documents will need reviewing and updating with any additional lawful basis for processing the data. Please speak to us if you have not already done a Data Protection Impact Assessment or do not have an Appropriate Policy Document, which sets out specific information for special categories of data as required by the Data Protection Act 2018, or if you would like help updating them in line with the obligations now on care homes.
6. Visiting professionals
The guidance touches on those professionals who may not be aware of their need to produce evidence, potentially adding in a requirement to their contracts, or giving them advance warning of the need to send someone who can comply with the evidential requirements.
7. Guidance for staff, local authorities, residents and friends/relatives of residents
Several sections of the Operational Guidance are now directed, essentially with the same information, at the above categories of individuals and stakeholders. Care homes will find it useful to be able to refer such categories of people to these parts of the Operational Guidance (or reproduce it for particular categories).
8. Good Employment practice
This is perhaps now one of the most useful parts of the Operational Guidance (Annex A). As we know, employers should act with caution to avoid discriminating against workers who are medically exempt. Religious or philosophical beliefs are not grounds for exemption from the requirement for care home workers to be vaccinated. However, this section gives some very practical guidance on what that means both in relation to where a person is at risk of dismissal and where an employer may be at risk of unlawful discrimination. It advises that care homes consider devising a vaccination policy. It sets out helpful information on unfair dismissal grounds, fair procedures, and the interrelationship between the Regulations and the Equality Act 2010, giving some examples. It also discusses engaging with the workforce and collective consultation where required.
Interestingly, despite the Regulations having been made in July and not coming into force until 11 November 2021, the Operational Guidance states that even where, after investigation and consultation, the care home takes the decision to dismiss a staff member who does not comply with the Regulations, they should be given both statutory and any additional contractual notice, or pay in lieu of notice. Ordinarily, it states, non-compliance will not justify dismissal without notice.
What does this mean for employers?
Previously, care home providers which required workers to be vaccinated against COVID-19 were at risk of claims being brought against them for unfair dismissal and/or unlawful discrimination under the Equality Act 2010. This risk has been significantly reduced as a result of these Regulations, as employers mandating vaccination will simply be complying with their legal requirements, and the Operational Guidance now clarifies how care homes should deal with such cases.
Care home providers (and agencies deploying care home workers) should continue to encourage voluntary take-up as much as possible by educating their staff about the vaccine. The Government has produced materials specific to the healthcare sector to help with this.
As discussed in the Operational Guidance, if an employee refuses to consent to the vaccine, employers should consider redeployment before dismissal. If there are no suitable alternative roles, the employer must follow a fair dismissal process to avoid a claim of unfair dismissal. In these circumstances, the reason for dismissal is likely to be on grounds of breach of a statutory restriction or some other substantial reason. Employers should already have started the process to ensure there is sufficient time for consultation with employees who are unable to demonstrate their vaccination or exemption status before the deadline of 11 November. Employers also need to bear in mind the recommended waiting period of two weeks after the second dose of the vaccine when considering whether those working or deployed in the care home should be allowed to enter.
The latest COVID Pass process and formal medical exemption letter, which must be obtained by 24 December 2021, will come as a relief to care home employers. Being able to draw the distinction between medical exemption and fully vaccinated workers will help care homes manage scenarios where the residents and staff in that care home might be vulnerable and extra care or PPE and procedures need to be put in place to make sure that they are safe.
Under section 60 of the Equality Act 2010, employers are prohibited from asking a job applicant health-related questions before making a job offer unless one of a limited number of exceptions apply. When publishing job advertisements, care home providers should make applicants aware of the requirement to be vaccinated but they must also clearly state that those who are medically exempt from the requirement for vaccination are still able to apply for roles as alternative arrangements may be made. The Operational Guidance states that care homes should notify prospective staff of the requirement at the start of the application process and undertake appropriate checks, during the recruitment process, to ensure the individual is eligible to work in the care home. It will only be possible for a newly appointed member of staff to start working in the care home once they have provided evidence of their vaccination status or a medical exemption. However, this will presumably have to be once the offer of a job has already been made to comply with section 60. Interviews for those who have not been vaccinated for any reason will have to be conducted away from the care home.
In the meantime, we also await the outcome of the Government’s consultation on compulsory vaccines in the NHS and wider social care sector which closed on 22 October 2021. This is of course of particular interest to care homes where residents or patients may be moving between care homes and NHS or other social care settings, with the overlapping network of workers of all kinds in those settings.
This article was first written on 21 July 2021, updated on 15 October and again on 27 October 2021. As the situation with regard to this situation is regularly changing, please contact one of our employment team lawyers for the latest position.
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