The government has announced that all adult care home staff will have to be vaccinated against COVID-19 if they want to continue to work in the sector.

Recent NHS data shows nearly 77,000 care workers in older people’s homes who are eligible to be vaccinated still have not had their first jab. Research published last month by the London School of Hygiene & Tropical Medicine, found that black African and mixed black African staff were almost twice as likely to decline a vaccination as white British and white Irish participants.

Currently, there’s no legal basis the government can rely on to force people to have a vaccination and the Green Book (which provides information for public health professionals on immunisation) says that a patient has to agree before their doctor can administer a vaccine. That’s unlikely to change; care staff will still be able to refuse to be vaccinated.

The government has been worried for a while that its policy of persuading people to have the vaccine has not been as successful as it hoped, particularly in the adult care sector. It launched a five week consultation in April 2021 and made it clear that it intended to change the law quickly to require ‘older adult care homes to … keep their COVID-19 vaccination status up to date’. It indicated that it would amend the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 to make vaccination part of the fundamental standards staff needed in order to continue to work.

This consultation met with negative responses from both staff and care providers, who raised a number of objections. Many argued that compelling staff to be vaccinated was not the answer, and that staff needed clear, factual information to assuage their concerns and enable them to make informed choices.

Will the new rules apply to all care homes?

The government has not yet published draft legislation. However, its press release indicates that the rules will apply to anyone working in a CQC-registered care home in England for residents requiring nursing or personal care.

This includes all workers employed directly by the care home or care home provider (on a full-time or part-time basis), those employed by an agency and deployed by the care home, and volunteers deployed in the care home.

People coming into care homes to do other work, for example healthcare workers, tradespeople, hairdressers and beauticians, and CQC inspectors will also have to follow the new rules unless they have a medical exemption.

Do our staff have to be fully vaccinated to comply with the rules?

Yes. Everyone must have two doses of a COVID-19 vaccine unless they have a medical exemption.

The government hasn’t set out a list of the types of conditions that the exemption may cover. However, its ‘vaccination guide for healthcare workers’ suggests that only ‘a very small number of people who are at risk of COVID-19 cannot have the vaccine – this includes people who have severe allergies’.

The Joint Committee on Vaccination and Immunisation has also advised that pregnant women should be offered COVID-19 vaccines.

A registered manager (or equivalent person) must complete a risk assessment and take appropriate action to mitigate risk for any member of staff who can’t be vaccinated due to health reasons. Subject to the exact wording of the legislation, that might include moving them away from front line care, or providing suitable PPE.   

What about staff who object to the vaccine on religious or other protected grounds?

It’s not entirely clear how the government intends to deal with this issue. The Equality Act 2010, potentially protects individuals who object to being vaccinated on the basis of their religion or philosophical belief.

There are a small number of religious groups that disapprove of vaccinations because they believe they ‘interfere with divine providence’. Other groups, such as vegans, may disapprove of the vaccine because animal products were used in their development.

There are also an increasingly number of vocal ‘anti vaxxers’ who subscribe to a number of different beliefs about the dangers of being vaccinated. It’s possible that some of these may also be protected. 

It’s therefore possible that you may face indirect discrimination claims from some members of staff. To defend these you will need to show that you have a legitimate aim (protecting vulnerable people) and there are no other, less discriminatory ways, in which you can achieve that aim such as wearing PPE etc. You’ll certainly be able to point to the fact that you are following the law, but it’s difficult to say at the moment whether or not that will be enough to defeat a claim.

Staff may also claim that forcing them to have a vaccination breaches their human rights.

Can we dismiss anyone who doesn’t agree to be vaccinated?

Potentially, yes. You’ll need to establish that you dismissed for one of the five, potentially, fair reasons set out in the Employment Rights Act 1996. One of these is illegality. This arises where a member of staff can’t continue to work in their existing role without contravention of a statutory duty or restriction. However, it’s not yet clear whether it will be ‘illegal’ to employ someone who isn’t vaccinated.

Alternatively, you may be able to dismiss someone for failing to comply with a reason management instruction.

In both cases, unfair dismissal rights are only available to employees who have worked for you for at least two years. Casual and zero hours workers don’t have this protection.

Generally, you’ll need to warn the employee first, given them the opportunity to comply and consider other alternatives. If you do decide to dismiss, you’ll need to give the employee notice and allow them to appeal against your decision. You should seek legal advice if you’re not sure about this.

Do we need a policy?

Yes. You will need to put in place policies and procedures to enforce the new rules. We also recommend that you start discussing this now with your staff so that you have time to address their concerns, and hopefully persuade them to comply. 

Information about who has been vaccinated will constitute sensitive personal health data. The same will be true of information about who has not been vaccinated and why. You'll need to comply with GDPR rules on processing special category data, which means that you have to identify the lawful basis you are relying on for monitoring, update your Privacy Notices and only retain the information for as long as it's needed.

When will the new rules start?

The government will need parliamentary approval to impose these changes. Provided it gets this, it has said that the new rules will come into force in October. There will also be a 16-week grace period to give care homes time to comply.

Our view

The care sector is already struggling to fill existing vacancies and is, understandably, concerned that making vaccination a condition of employment could make it even harder to attract and retain staff. Those care homes that haven’t already done so will need to find out who hasn’t been vaccinated and try and address individual concerns. If they can’t they will be in the invidious position of having to dismiss staff and deal with the employment related claims that are likely to follow.

Need help?

We can help you write an appropriate policy, respond to questions from your staff (and any grievances you receive). And, if you do have to dismiss people, we'll help you to minimise risk.

Please contact Sybille Steiner for more information. 

This article first appeared in Care Markets