Implications of mandatory Coronavirus vaccination for staff entering care homes – Government guidance published

The information in this article was correct on 6 August 2021.  The section on vaccination exemption was updated on 27 September 2021 in line with new advice from the Department for Health and Social Care.

Whilst most employers should still remain cautious about mandatory vaccination for their workforce the Government recently announced that under the  Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (‘the Regulations’) from 11 November 2021 all employees and workers entering a care home – including staff employed directly and others who may enter the home to provide services – must show proof of vaccination against Coronavirus, or prove that they have an exemption.  This month, more detailed Government guidance was published to assist affected businesses to implement this requirement.

Whilst we do expect the Government guidance to be updated over time, this article highlights key areas to consider and offers practical tips for affected businesses.

1. The remit of the Regulations is wide

The requirement to show proof of vaccination applies not just to staff employed by the care home directly, but also contractors and other service providers who may enter the home.  This might include maintenance workers, hairdressers, entertainers, caterers, cleaners, medical professionals, couriers and others.  There are exemptions for under 18s, care home residents, their friends and relatives, emergency service personnel, emergency maintenance workers, and other workers who do not physically enter the home (for example garden maintenance workers or security guards).

What this means for businesses – if your business has staff who enter care homes, regardless of the work they do when they are there, they will be covered by the Regulations and will need to prove their vaccination status from 11 November.  You should identify these individuals and use the time between now and November to notify them of the requirement to be vaccinated, offering any necessary support and guidance.  You may need to consider redeploying staff who are unvaccinated so that they do not enter a care home.  If you are a care home provider, you should identify visiting professionals and inform them in advance of the requirements.  You will also need to identify staff who need to be vaccinated, inform them of the upcoming changes, and do all you can to encourage full vaccination before 11 November 2021.

2. It is not yet clear how vaccination status or exemptions will be proven

Currently, individuals can prove their vaccination status through the NHS App, but the guidance is yet to be updated with other ways for staff and visiting professionals to prove their vaccination status.  The proof is likely to be available via an app, a website and in paper form.  Vaccination appointment cards will not count as proof of vaccination.  The criteria for those who are exempt from vaccination is also yet to be published but it is clear that this will be extremely limited.

In September 2021, the Government confirmed that for a short period, individuals can self-certify their exemption status as the procedure for full certification is not yet ready.  The self-certificated exemption will expire 12 weeks after the full process is launched, but a date for this is not yet known.  The Government has published a self-certification form which employees can use.

Exempt staff with the correct proof can continue to work in the care home, subject to a risk assessment (see below).

What this means for businesses – employers should make sure that all affected staff can produce proof of vaccination or exemption when required.  For staff who have an exemption which is either self-certified or via the full process when it is launched, care homes and other employers can continue to employ them but will need to conduct a risk assessment to ensure the safety of the exempt person and those they work with.  The guidance suggests that steps might include increasing or changing PPE, or altering duties.  Staff who self-certify their exemption will have to formally certify it within 12 weeks of the launch of the formal process

3. Care homes will be responsible for storing the vaccination or exemption status of those affected

But they will only need to record the vaccination status once and will not need to check at the start of each shift, or on subsequent visits by external professionals, unless they wish to.

What this means for businesses – care homes will need to think about how they store proof of vaccination or exemption and ensure they comply with GDPR requirements.  Care homes will need to consider who has access to the data; how long they retain the data for; how the data is stored; whether any privacy information needs updating; whether any Data Protection Impact Assessment requires updating; and whether any Data Protection Policy Documents require updating.  Larger providers may already have a computer system that they can use to store vaccination status details, but the guidance suggests that smaller care homes can use their existing written visitors log (for example) to record that proof of vaccination or exemption has been seen so that it can be subsequently checked by other shift managers.  Even then, the actual proof of vaccination will need to be stored safely and securely elsewhere, to avoid making sensitive medical data available to those who do not need to see it.  Employers of staff who enter care homes will need to make sure that their staff members can provide proof of vaccination when they enter the premises for the first time after 11 November 2021.

4. Employees who refuse vaccination, or who fail to provide proof of vaccination or exemption, may face dismissal

Dismissal because of the breach of a legal requirement (in this case the requirement to provide proof of vaccination or exemption) can potentially be fair, so an employer could, as a last resort, consider dismissing an employee if they fail to provide proof of vaccination or exemption.  All employers must still comply with the Equality Act 2010 and the legal requirement not to discriminate against their staff.  However, the guidance states that “it will not be unlawful discrimination in relation to age, disability, religion, or belief for a care home to ensure that a person… who has not been vaccinated and is not medically exempt does not enter the care home”.  There are other protected characteristics (including sex, sexual orientation, race, gender reassignment and pregnancy or maternity) to consider so employers should still take care that the methods they use to seek and store proof of vaccination, or deal with non-compliance, are clear, consistent and fair.

What this means for businesses – if vaccination or exemption status cannot be proven, or if employees refuse the vaccine, care homes or other affected employers should explore the reasons why, and should consider whether redeployment to other roles outside the care home may be possible as an alternative to dismissal.  Businesses who send staff to care homes may find it easier to redeploy those who cannot prove their vaccination status.  In order for a dismissal to be fair, a proper and reasonable process must be followed involving discussion with the employee, holding a formal meeting (which may include the right to be accompanied), taking time to explore all alternatives, and offering the right of appeal against the outcome.  If an employee cannot provide immediate proof of vaccination or exemption, but intends to (for example if they have only just had the vaccination, or are waiting for proof of vaccination to come through) then a short period of paid or unpaid leave could be offered whilst the issue is resolved.

5. Employers will need to carefully consider any policy or contractual changes

It will need to be made clear that employment cannot commence or continue without proof of vaccination or exemption, and employers should think about reflecting this in their offer letters and contracts of employment.  If a care home or other employer has a policy on vaccination then this may need to be updated to cover the requirements for affected workers.  Existing Data Protection policies may also need to be updated – see point 3 above.

What this means for businesses – now is the time to ensure that all necessary employment documents – including offer letters, contracts, policies and forms – reflect the situation in time for 11 November.  Whilst some care homes may want to amend the contracts of existing staff members, they should bear in mind that this may trigger collective consultation requirements (if more than 20 employees are affected) and could also create significant additional administration and other employee relations issues.  On the other hand, although there is a potentially fair dismissal reason available to employers outside of a contract if they need to take action against employees who cannot prove vaccination or exemption (see point 4 above), a contractual provision could help to clarify the requirements and stipulate process to be followed upfront

What else is awaited?

Whilst this first set of guidance is helpful, there are a number of issues still to be clarified, including:

• The methods that employees and others can use to prove their vaccination or exemption status
• The criteria for an exemption
• Whether vaccination booster status will need to be proven, as currently the regulations only cover two doses and the Government has not announced a vaccination booster program as at the time of writing
• How staff who were not vaccinated in the UK can prove their vaccination or exemption status
• The potential impact on staffing levels in care homes and in businesses whose staff visit care homes, and how this can be addressed in a way which enables providers to still meet the care needs of their residents

A separate consultation is also underway regarding the mandatory vaccination of frontline health and social care staff, but there is no timescale for implementation.

We will provide further updates on these issues and more as we become aware of them.

Contact our HR Consultants today

If you are a care home provider or a business that sends staff to care homes, our team of friendly HR Consultants and Employment Lawyers are here to help you.  We can assist with contract and policy advice, consultation meetings, dismissals and many other issues.

Please get in touch with our specialist team by filling out our online enquiry form or by calling 0333 222 0989.