Parliament has voted in favour of compulsory COVID-19 vaccinations for those working in CQC-registered care homes in England, giving rise to mixed reactions.
Despite some concerns raised both in the House of Commons and House of Lords, Parliament has now approved the draft Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (the Regulations). Under the Regulations, anyone working in a care home in England with residents aged 65 or over, which is registered with the Care Quality Commission (CQC), must be fully vaccinated against COVID-19 unless they are exempt. Whilst the Regulations apply only to England, they will affect some 15,000 care homes.
Once the Regulations are actually made law, there will be a 16-week grace period to allow unvaccinated workers to arrange to take the vaccine before its provisions become effective. Because of concerns raised about the current absence of any accompanying guidance for care homes, it is anticipated that the Regulations will be made law at the end of July when accompanying guidance is due to be published. This means the Regulations could take effect later than expected.
The Regulations will apply not just to care home workers in England but to all workers requiring indoor access to care homes, including those providing nursing or personal care on a full-time, part-time or voluntary basis, whether employed by the care home provider directly or by an agency. In addition, individuals coming into care homes to do other work such as healthcare workers, tradespeople, hairdressers, beauticians and CQC inspectors must also comply with the vaccination requirements. However, individuals entering the premises to assist in an emergency or to carry out urgent maintenance work, persons under the age of 18 and clinical trial participants do not need to be vaccinated.
Individuals suffering from certain allergies and conditions (set out in Chapter 14a of the Public Health England (PHE) ‘green book‘) are medically exempt and do not need to be vaccinated against COVID-19. In practice, this should be a relatively small number of individuals.
Religious beliefs are not recognised as grounds for exemption. However, employers should act with caution to avoid discriminating against workers who are medically exempt. Moreover, disclosure of medical conditions constitutes the processing of "special categories" of personal data under the Data Protection Act 2018 with its particular obligations.
To avoid keeping unnecessary records of medical conditions, best practice would be to ask the individual to obtain a letter from their medical practitioner confirming their exemption, and ensure that any such document is held securely and is accessible only to those who need to see it. This may become clearer in the guidance when published.
There has been a mixed reaction to the Regulations. It is possible that the Regulations may be challenged by judicial review on libertarian grounds. However, the Equality and Human Rights Commission have said that the Government is right to prioritise the protection of the right to life for residents and staff. The Equality Impact Statement was not produced until after MPs had voted on it, but before the vote in the House of Lords, which attracted some criticism. The Equality Impact Statement seeks to address concerns regarding beliefs and other grounds of discrimination under the Equality Act 2010.
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.
In the lead up to the implementation of the Regulations, care home providers (and agencies deploying care home workers) should 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.
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, which is likely to be on grounds of breach of a statutory restriction once the Regulations have made it mandatory.
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. At present, it is not clear how the Regulations will interact with section 60 but we expect the Government to provide detailed guidance to care home providers clarifying how they can check vaccination status in a way that complies with section 60 and makes clear that, in the majority of cases, wider health-related questions will remain unlawful. 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 exempt from the requirement for vaccination are still able to apply for roles as alternative arrangements may be made. Interviews for those who have not been vaccinated for any reason will have to be conducted away from the care home.
If you require any legal advice regarding compulsory vaccinations in care homes, contact our employment law team.
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