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Experts

A controversial topic of discussion. We answer some of your most asked questions and address misconceptions.

Unprecedented times prompt unprecedented legislation, and new rules on mandatory staff vaccination in care homes, described by the British Medical Journal as ‘ a profound departure from public health norms’ is certainly new territory for employers.  

Here, we answer some of your frequently asked questions and address some misconceptions around COVID vaccination and its role in the post-pandemic health and social care sector.  

Q: We have heard that the Government will make COVID vaccination mandatory for employees in the care sector. Is this correct?

Yes. The Government consulted between 14 April and 26 May 2021 on a proposal to deploy only those workers who have received two doses of their COVID19 vaccination.  Despite a majority of all respondents (57%) opposing the measures, the Government chose to proceed due to high levels of support among care home providers.

The policy extends to all CQC registered care homes, in England, which provide accommodation for persons who require nursing or personal care.  There are currently no plans to introduce mandatory vaccination in Scotland or Wales.

The possible extension of mandatory vaccination across other health and social care settings, such as younger people’s care homes and hospitals, and potentially to other vaccines such as the flu vaccine, will be the subject of further consultation in the coming weeks.

Q: When will these rules come into force? Are there any other key dates to note?

The new rules became law on 22 July 2021. However, there will be a 16 week ‘grace period’ before the mandatory vaccination requirement ‘kicks in’, on 11 November 2021, to allow unvaccinated staff to get both jab doses. The new rules will be reviewed every 12 months.

This means that the last date for care home workers to get their first dose so they are fully vaccinated by the time the regulations come into force, is 16 September 2021 (8 weeks prior to the 11 November ‘go live’ date)

Q Which staff will be covered by the rules?                                                                                  

The requirement will only apply indoors and will exclude residents; friends and relatives of residents who are visiting; persons providing emergency assistance or urgent maintenance work in the care home, and those under the age of 18. The requirement will not apply to people who only work in the outdoor surrounding grounds of care home premises.

The requirement will apply to any professionals visiting a care home, such as healthcare workers, tradespeople, hairdressers, beauticians and CQC inspectors. Staff employed directly by care home, full and part time agency staff, and volunteers will all be included.  

Q: Will there be any other exemptions?

Yes. Individuals will be exempt if they have certain allergies to the vaccine ingredients or conditions which are medically recognised as reasons not to administer the vaccine. The Government’s recently published operational guidance states that there will be a clear process for staff to follow if they think they may have a clinical reason to be exempt – which will result in the issue of an exemption certificate.

Further guidance is also expected around how staff who are medically exempt can be safely deployed in a care home setting. It is not yet clear whether this will include limiting the range of duties they are permitted to perform.

The Government has decided not to extend exemption to other groups who may be ‘vaccine-hesitant’ such as pregnant/breastfeeding women; some Black Asian and Minority Ethnic Groups; and those with concerns about the vaccine based on religion or belief. Instead, targeted support will be offered to these groups to encourage them to comply.

Q: What evidence of vaccination must we ask for?

Individuals who have been vaccinated by the NHS in England may demonstrate their vaccination status using the NHS COVID Pass service. The Government anticipates that this will usually be done via the NHS App, but there will also be a web-based option for users who do not have access to smart-phones, as well as a non-digital option in the form of a letter. The guidance makes clear that an NHS appointment card cannot be used as proof of vaccination status. As stated above, certificates will be issued for individuals who are medically exempt from vaccination.

A record must be kept to confirm that relevant evidence has been provided. This record must be kept securely by the registered manager (or equivalent person) in compliance with current data protection regulations.

Q: Do we need to ask for evidence of vaccination every time an individual enters the premises?

No. Individuals entering a care home only need to demonstrate vaccination status on the first occasion they enter the premises, when their status (and the time/date on which they proved it) should be recorded. Care homes will be able to use these records as proof of vaccination status, to reduce the burden of having to re-check every individual. Checks may be carried out more often if preferred, but this is not a legal requirement. Where an exemption is recorded, there is no requirement to record the medical reason for that exemption (so, given the requirement under GDPR to retain only the minimum required health-related ‘special category’ data, we recommend that you do not record the reason).

Q: Can we let other members of staff know that a colleague is unvaccinated?

An individual’s vaccination status will be ‘special category data’ for the purposes of GDPR, so data should be securely stored and access limited to those who ‘need to know’ for recruitment or deployment purposes. An individual’s vaccination status should not be broadly shared with other members of staff, and should not be retained for longer than is necessary. It would also be prudent to check whether your existing data protection policy documents or impact assessments need to be updated in light of the changes.

Q: What happens if we get this wrong and allow unvaccinated employee to work in our care settings?

Responsibility for compliance and enforcement of the new rules will rest with the Care Quality Commission (CQC). In case of non-compliance with the legislation, the CQC will take a ‘risk-based and proportionate approach to enforcement’ in line with its broader enforcement policy. The CQC has civil enforcement powers and, the consultation response states, criminal enforcement against the provider or registered manager may be appropriate in the most serious of cases.

Civil enforcement options available to the CQC include issuing a warning notice; issuing a notice of proposal/decision to suspend or cancel registration; and making an application to court for immediate cancellation of registration where risk of harm to residents is perceived to be serious.

Q: How do we deal with staff who refuse to be vaccinated? Can we dismiss them for non-compliance?

An employer’s first position where a member of staff is ‘vaccine-hesitant’ should be to offer support and information, including a detailed explanation of exactly why the requirement is being imposed. The government has promised a range of resources to assist with these conversations.

After 11 November, employers in the care home sector will be empowered by law to dismiss employees who refuse to be vaccinated (unless they are medically exempt). However, we strongly recommend that you take legal advice at an early stage, before a decision is made to dismiss.

Q: What will the legal reason for dismissal be? Which of our existing policies/procedures should we use?

The ‘Good Employment Practice Guide’ annexed to the Government’s operational guidance states that a potentially fair reason for dismissal may be either ‘some other substantial reason’ (SOSR) or ‘statutory restriction’ (in that the employer will be breaking the law if they continue to employ the individual) While either reason will be acceptable, we consider that ‘statutory restriction’ will usually be the best fit.

Using a disciplinary process will not usually be appropriate as, in the absence of any additional factors such as providing false evidence, failure to accept vaccination is not, of itself, a disciplinary issue. A capability process is unlikely to be a perfect fit either – as failure to accept vaccination is not really a capability issue.

The only requirement is that a ‘fair procedure’ is followed; it is not strictly necessary to use an existing business policy or process. The Good Practice Guide outlines the framework of a ‘fair procedure’. Essentially, the employee must be consulted, and warned of the risk of dismissal if they do not evidence vaccination or exemption within specified timescales; allowed to attend a meeting to discuss the reasons they should not be dismissed (and allowed to be accompanied at that meeting by a colleague or Trade Union representative); be issued with a written outcome; and offered a right of appeal against dismissal. A fair process will also involve exploring any potential redeployment opportunities as an alternative to dismissal.

Q: What do we do if an employee produces evidence of vaccination or exemption after dismissal?

It is important to think about what you will do if a dismissed employee appeals against dismissal and completes a vaccination course or obtains a medical exemption after dismissal but before their appeal hearing. One option is to reinstate the employee and offer back-pay. Alternatively, where an employee expresses an intent to be vaccinated or to obtain evidence of exemption, it may be appropriate to defer dismissal and place the employee on unpaid leave to give them extra time. It is important to act consistently and fairly in all circumstances.

Q: Can we ask a potential employee about their vaccination status at interview stage?

When the legislation comes into force, care home providers must ask an applicant about their vaccination status at interview stage, as it will be unlawful to employ an unvaccinated individual (or even to allow them onto the premises, if they do not fall into an exempt group). It would be sensible to make job offers conditional on the applicant being able to evidence vaccination status/exemption – with offers being withdrawn if this condition is not met. It would be prudent to include the requirement to be vaccinated in new recruits’ contracts of employment for the avoidance of doubt.

Q: Do we have to amend the terms and conditions of existing staff to reflect the change?

We recommend that you update the terms and conditions of new/prospective employees to reflect this change.

However, it is not essential to issue a new written statement of particulars to existing staff. The new statutory requirement will apply from 11 November 2021 regardless of whether particulars have been updated. However, you may update particulars if you wish.

There may be long-term benefits to putting mandatory vaccination on a contractual footing; for example, ease of enforcement if legislation is later amended to include boosters or annual vaccination. This would also achieve consistency on the issue between existing and new staff. If you do decide to amend T&Cs, it may be easiest to issue existing staff with a letter of amendment – and to update standard written particulars for new recruits only.

However, as you will be aware, changing terms and conditions can be a sizeable administrative task which is labour intensive and time consuming. You may also encounter some employee relations issues; some staff may be willing to accept vaccination, but nevertheless have reservations about a new contractual term. Remember too that formal collective consultation obligations may be triggered if more than 20 staff object. It is important to weigh up these competing factors to decide on your organisation’s strategy.

Q: Are there any discrimination/Equality Act issues to watch out for?

The Government guidance reassures that there will be no contravention of the Equality Act 2010 if the regulations are properly observed. To defend a claim of indirect discrimination, an employer must show that their actions were a proportionate means of achieving a legitimate aim. The guidance states that compliance with the legislation is likely to be a ‘legitimate aim’ and dismissal of non-vaccinated staff a ‘proportionate means’ of achieving that aim.

However, it remains important to ensure that non-discriminatory criteria are used for any deployment decisions related to the new statutory requirement (for example, if there are a small number of available roles into which non-vaccinated staff may be redeployed, any criteria for deciding who is redeployed and who is dismissed must not discriminate).

If you need any further advice or information on any employment or HR matters, please contact our employment law solicitors.

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