COVID-19 has taken many thousands of lives in the UK particularly among older people and those with underlying health conditions. From 11 November 2021 all care home workers and anyone entering a care home will need to be fully vaccinated unless they are exempt.
In this article we explore what changes are imposed by the new regulations, how employers can ensure that they are well prepared for these changes and what legal claims may arise.
What are the changes imposed by the new regulations?
All registered care homes providing accommodation and nursing or personal care will have to ensure that no person enters the care home unless they have provided satisfactory evidence that they have been fully vaccinated or they are exempt.
The regulations apply to the following categories of people:
- employees;
- workers;
- agency staff;
- volunteers;
- anyone deployed in a care home; and
- any other professionals or tradespeople who enter the premises.
The requirements do not apply to residents, their relatives or essential care givers. Nor do they apply to persons carrying out essential maintenance work or emergency services. However, they do apply to other personnel who enter the home to work such as therapists, doctors and hairdressers.
The requirement will apply from 11 November 2021, with the responsibility falling on registered managers and policed by the Care Quality Commission. A 16 week “grace period” started from 22 July 2021 with 16 September being the last date that care home workers can get their first dose, so that they can be fully vaccinated by the required date. Providers are encouraged to consult with staff and fully explain the new requirements and encourage workers to get vaccinated. They will also need to explain what will happen to staff who refuse or are reluctant to get fully vaccinated and consider carefully any exemptions.
Providers will have to keep records of all staff and other persons who enter the care home, their vaccination status and whether they are exempt. This will apply both to their direct employees and staff employed by other organisations who enter the care home. Therefore, the new requirements will need to be made clear to other organisations dealing with the care home and appropriate systems adopted.
The regulations only apply to care homes in England.
What if a worker refuses to have the vaccine?
Some employers may face a backlash from workers who do not want to have the vaccination due to their personal views or for health or other reasons. It is predicted that of around 570,000 people working in care homes, 40,000 of these will refuse to have the vaccination, which equates to around 7% of all workers. Providers will therefore need to anticipate potential staff shortages in a sector which already faces pressures.
Of course, a provider cannot physically force a worker to have the vaccination and a worker has the right to choose whether or not they have it. However, unless a worker has a valid medical exemption confirming that they cannot have the vaccination, care homes will be unable to continue to employ any unvaccinated workers in the regulated setting without being in contravention of the law.
Employers will therefore need to engage early with their staff and ensure that any objections from staff to having the vaccine are considered carefully. Ultimately however it will need to be made clear that unless redeployment to an unregulated setting (such as head office or a role that does not involve entering a care home) is a possibility then employment would need to be terminated. This process may lead to legal claims of unfair dismissal and potentially discrimination.
Unfair dismissal
Employees who have two years’ service or more at the date of dismissal are eligible to bring a claim of unfair dismissal if their employment is terminated. The employer must be able to show a fair reason for dismissal and they have acted fairly and reasonably in deciding to terminate employment for that reason. An inability to continue to employ the person without breaking the law would almost certainly be a fair reason for dismissal but an Employment Tribunal would consider whether all other reasonable options were explored prior to dismissal, such as redeployment and whether a fair process was followed including a right of appeal.
Discrimination
The law protects workers from less favourable treatment because of various protected characteristics such as disability, religion and belief, race, sex, pregnancy and age. Indirect discrimination occurs when the employer operates a provision, criterion or practice which applies to all but which disadvantages persons who have a protected characteristic and which cannot be justified.
Placing a requirement on a worker to be fully vaccinated as a condition of continuing in their employment (or being considered for a job) and dismissing them if they refuse to do so could give rise to discrimination claims. For example, those who have a religious or other moral objection to the vaccine, or who feel they cannot have the vaccine may try to bring a claim. Further there may be issues with groups where it is established that there is more vaccine hesitancy than the general population such as younger workers or pregnant workers. Ultimately there is likely to be a powerful justification argument that an employer could run to defend such claims, but these issues are likely to be tested in the Employment Tribunals in the future. Considering any objections, dealing with issues in a timely manner and consulting with staff are all likely to lessen the risks of a successful discrimination claim.
Data Protection issues
The regulations require care home providers to gather and keep information relating to vaccination status or medical exemptions from both their own staff and other personnel. This information will constitute “special category data” and therefore whilst the regulations provide a legal basis for a provider to process this information, the provider must still comply with the usual requirements of data protection. For example, they must inform data subjects (staff and personnel) why they are required to collect and keep the data, what it is used for, and how long it will be retained. The data must be appropriately protected and not be excessive. For example, care should be taken in terms of medical exemption that the provider follows guidelines (which are still being developed) and does not ask for or process any further information than is actually required, such as detailed information on medical conditions.
How to prepare for the changes?
There is a minimum eight-week period required in England between the first and second dose of the COVID-19 vaccination. In order to accommodate this, care workers will need to have the first dose of the vaccination by 16 September 2021 at the very latest. If they have not had their first dose by this date, they will not be fully vaccinated by 11 November 2021 and employers will need to consider appropriate actions including granting a period of time off work until they have had both vaccinations, redeployment or termination of employment.
Employers should ensure that all workers are well aware of the changes and the date on which they need to have had their first vaccination by. They should hold meetings to discuss the changes and address any issues that their workers have. They should consider all reasonable steps to encourage staff to have the vaccine including paid time off work. This will help to avoid the need to dismiss any workers should they not be vaccinated by the implementation date.
Furthermore, organisations should be pro-active and ensure that their staff are trained to understand what they are required to do in order to ensure compliance with the regulations.
Registered care homes are not the only employers affected by these changes. The regulations will also potentially cause disruption to any other organisations that deal with care homes or may require their employees to enter a care home for any reason. All employers who could potentially be caught by the regulations should take steps to ensure that they are prepared.
Are you an employer which is affected by these issues? If you would like to discuss any aspect of preparing for the new regulations. Please contact Lee Jefcott or your usual Brabners Employment team contact.
