Despite widespread criticism from trade unions and care home providers, the government has introduced a mandatory COVID-19 vaccination programme for care homes which came into effect on 11th November 2021. In this article we will cover information included in the government guide:
What does this legislation mean for care homes?
The mandatory vaccination programme requires all care home workers to be fully vaccinated (receive two doses of the vaccine against coronavirus) as of 11th November 2021 unless they are exempt. The programme does not cover booster vaccine doses at this stage. The legislation places a responsibility on care home providers to check evidence of vaccination status for all workers entering the care home. The new rules apply to all care homes in England that are registered with the Care Quality Commission (CQC), including those that care for young people.
The Health and Social Care Secretary, Sajid Javid, has announced plans for the vaccination requirement to be extended more widely to health and social care workers, including volunteers by April 2022.
Who does the legislation apply to?
The rules apply to all workers who enter the indoor premises of a care home, including full and part time employees, agency workers and volunteers. The requirement to be vaccinated also applies to individuals visiting a care home in a professional capacity, including healthcare workers, tradespeople and hairdressers.
Are there any exemptions?
There are several grounds for exemption:
- Workers under the age of 18;
- Professionals entering a care home to assist with an emergency or to carry out urgent maintenance work;
- Those that work outdoors only (for example, gardeners and window cleaners);
- Some workers may be eligible for a medical exemption, for example those that are at risk of a serious allergic reaction to the vaccine and those that have had an adverse reaction to the first dose of the vaccine. Depending on the nature of the medical condition, the exemption may be temporary or permanent. Further information about medical exemptions is available on the gov.uk website; and
- Pregnant workers may also claim a temporary medical exemption, which will expire at 16 weeks post partum.
The government has confirmed that there will be no exemption on religious grounds.
How to check evidence of vaccination status
Care home providers will be required to check for evidence that all workers entering the care home premises are either fully vaccinated or exempt. The NHS Covid Pass can be used as evidence of vaccination and exemption status.
To apply for a medical exemption, workers need to complete a medical exemptions application form (available by calling 119). The application will be reviewed by a medical professional. If the application is successful, then their NHS Covid Pass will be updated to reflect this.
Until 24th December 2021, workers can self-certify that they meet the medical exemption criteria. The self-certification form can be used as evidence of temporary exemption status.
Pregnant women can use their MAT B1 certificate as evidence of their exemption, and are not required to complete a medical exemptions application form.
What do employers need to do to prepare?
Communicate with your workers
The CIPD suggest that you ensure all your workers (including zero hours staff, agency workers and volunteers) are aware of the mandatory vaccination rules, including:
- The reason why the rule has been introduced;
- The timeframes;
- What they need to do to be fully vaccinated – ie two doses of the COVID-19 vaccine;
- How to apply for an exemption;
- What will happen if they aren’t vaccinated from 11th November 2021, ie that if no other alternative options are available their employment may be terminated; and
- Who is available to provide support and advice (for example, their line manager or HR).
It is recommended that this conversation should take place in person. However, it would be advisable to send each worker a letter summarising the key points.
If English is a second language for your employees, consider whether any additional support is needed. For example, you could encourage your employees to bring an English speaking friend or family member, or you could arrange for a translator to be present.
Provide advice, support and encouragement
Ideally all of your employees will choose to be fully vaccinated. Employers are advised to encourage voluntary take-up by following these steps:
- Make yourself available for support and advice on a confidential and impartial basis;
- Provide factual information to help workers make an informed decision. For example, you could share links to government and NHS information; and
Offer paid time off to attend vaccination appointments, and full sick pay if the worker experiences adverse side effects. This was identified by Unison as being one of the key ways to encourage voluntary take-up
Check evidence of vaccination status
Ask your workers to provide evidence of their vaccination or exemption status. For existing staff, this will have ideally happened prior to the 11th November, to help you identify whether any workers will be unlikely to meet the requirements of the legislation, so that you could start having conversations with them as early as possible.
This will also help you to identify if any workers need assistance in applying for an exemption or completing the self-certification form.
Update your recruitment process
Care home providers must ensure that all new employees are either vaccinated or exempt. All job offers should be made conditional on evidence of full vaccination or exemption, and the workers’ status must be checked before they enter the care home premises (even to attend an interview). Employment agreements should be updated to reflect the change in legislation.
Be aware of Data Protection Rules
To comply with the Data Protection Act 2018, you must ensure that:
- Your workers understand the reason why they are being asked to provide evidence of their vaccination / exemption status; and
- The information must be held securely, and should be accessed by individuals only for the purposes of complying with the new legal requirement. This is particularly relevant where the worker has a medical exemption. While employers should keep a record of all workers with a medical exemption, it is not necessary to record the clinical reason for the exemption.
Introduce a COVID-19 Vaccination Policy
It is recommended that care home providers should introduce a COVID-19 Vaccination Policy if they haven’t done so already. The Policy should include:
- An overview of the compulsory vaccination rule;
- A list of exemptions and the process to follow to apply for an exemption;
- A summary of COVID-19 safety measures implemented;
- Any changes to the recruitment process;
- Entitlement to paid or unpaid time off for appointments;
- How the employer will manage workers who remain unvaccinated and are not eligible for an exemption; and
- How vaccination and exemption status evidence will be collected and stored
Please contact a member of our team on 0330 223 5253 if you would like assistance with drafting a COVID-19 Vaccination Policy.
How to manage a worker who is exempt
If a worker informs you that they are exempt, ask them to provide evidence of their exemption status. This may be their NHS Covid Pass, a medical exemption self-certification form (a valid form of evidence until 24th December 2021), or their MAT B1 certificate (for pregnant workers).
Workers with an exemption may continue to work in the care home. However, it would be wise to consider additional safety measures, such as mask wearing or reducing their contact with vulnerable residents.
If a worker informs you that they are exempt, ask them to provide evidence of their exemption status. This may be their NHS Covid Pass, a medical exemption self-certification form (a valid form of evidence until 24th December 2021), or their MAT B1 certificate (for pregnant workers).
Workers with an exemption may continue to work in the care home. However, it would be wise to consider additional safety measures, such as mask wearing or reducing their contact with vulnerable residents.
How to manage a worker who remains unvaccinated
If a worker remains unvaccinated, and is not eligible for an exemption, they will no longer be allowed to enter the care home.
The employer should discuss with the worker their vaccination status, and confirm whether they are entitled to an exemption. All alternative options should be considered before a decision is made to terminate employment. For example, the worker could be placed on either paid or unpaid leave until they are fully vaccinated or have provided evidence of an exemption. Redeployment opportunities should also be explored, such as a transfer to a head office role.
If no other options are available, a fair process should be followed to dismiss the worker. The appropriate process to follow will depend upon the nature of the worker’s employment (ie volunteer, self employed, agency staff, worker or employee), and any relevant employment policies or contractual agreements.
For ‘employees’, the government advises employers to adhere to the following process as a minimum:
- The employee should have been made aware of the requirement to be fully vaccinated.
- A meeting should be held, and the employee should be given an opportunity to explain their circumstances before a decision is made to terminate employment. As the employee is unable to enter the care home, this meeting should take place at another location or via video call.
- The employee should be given the opportunity to be accompanied
- The employer should genuinely consider all alternative options to dismissal, such as paid or unpaid leave or redeployment.
- The employee should be notified in writing of the decision to terminate their employment, and given the right to appeal the decision.
- The employee will be entitled to pay in lieu of notice.
Despite the introduction of the new legislation, the risk of legal challenge remains. Employees with over two years’ service may claim unfair dismissal, while workers with protected characteristics could claim discrimination. Nevertheless, care home employers are likely to be successful in defending their decision if they can show that they acted reasonably and followed a fair process, as they will be able to rely upon the new legislation to justify their policy.
Please contact a member of our team on 0330 223 5253 if you would like assistance with managing a worker who remains unvaccinated.
The controversy surrounding the mandatory vaccination rule
Controversy surrounds the decision to introduce compulsory vaccinations. The government has estimated that approximately 40,000 care home workers will remain unvaccinated and without exemption, and therefore may face the termination of their employment. Unison have stated ‘We strongly believe that introducing vaccination as a condition of deployment would be ethically wrong and counterproductive… The consequences in relation to staff shortages, legal jeopardy, equalities and continuity of care should, alone, be reason enough not to proceed.’ Meanwhile, the Chief Executive of Care England (who represent independent care homes) has said that ‘the policy would deepen the sector’s staffing crisis and could force some homes to close’ .
Nevertheless, a Department of Health and Social Care spokesperson said ‘vaccines save lives and it is our responsibility to do everything we can to reduce the risk for vulnerable people in care homes’.
While the impact of the legislation is yet to be seen, it is clear that care home providers will continue to face unprecedented challenges as a result of the COVID-19 pandemic as they implement the mandatory vaccination programme.
What can we do to help?
If you would like advice on managing the risks of COVID-19 in your workplace, please contact our team on 0330 223 5253 or office@fitzgeraldhr.co.uk. We would be delighted to help you.
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