New legislation comes into force on Thursday 11 November 2021 which requires all adult care-home staff to be fully vaccinated against COVID-19 unless they are medically exempt. Care-homes have around 14 weeks left of the grace period to set up systems to check and record the vaccination status of their staff and, to consult with and redeploy or dismiss those who won’t comply.

In reality, care-homes only have until 16 September to persuade existing members of staff to have their first vaccination. This is because everyone working in a care-home must be fully vaccinated by 11 November. There’s a delay between the first and the second vaccination (which the government has assumed is just over six weeks) and no-one is considered to be fully vaccinated until two weeks from the date of their second vaccination.

The government has published operational guidance to help you prepare for the change and an impact statement which estimates the potential size of the workforce who may not have been vaccinated by the end of the grace period.

How many people won't be vaccinated in time?

The impact statement demonstrates the scale of the problem. It estimates that 7% of the workforce may be unvaccinated by the end of the grace period, equating to around 40,000 workers. But, it acknowledges that it could affect as many as 70,000 care workers.

It estimates that the cost of replacing workers who don’t meet the vaccine requirements is around £2,500 per worker. That figure is based on a single small adult social care provider that employs 20 full time equivalent care workers and recruits six over the course of 12 months. That’s a huge amount of money for a sector that is already cash strapped and struggling to fill existing staff vacancies.

The government expects all registered care-homes to take ‘reasonable steps’ to cover staff shortfalls in the short term through the use of bank or agency staff. If that option isn’t available to you, you will need to alert your local authority and find out if they can offer assistance. If your staffing levels affect your ability to operate the care-home safely, you must notify the CQC.

Who is responsible for checking the vaccination status of care-home staff?

The person who is registered with the CQC as a manager or service provider of your home is legally responsible for checking that your staff and job candidates have been vaccinated or are exempt.

Which medical conditions are excluded?

The government still hasn’t provided clear guidance on who will be medically exempt. It says that exemptions will reflect those included in the Green Book (which provides information for public health professionals on immunisation). The Green Book states that there are ‘very few individuals who cannot receive the … COVID-19 vaccines’ and that only those who have had a previous systemic allergic reaction to the vaccine or any component in it shouldn’t be given the vaccine (or a second dose).

What we do know is that anyone claiming the exemption will need to prove this by producing a letter/certificate from a medical professional. The government has said that it is will put in place a clear process for staff to follow if they think they have a clinical reason to be exempt. It’s also developing guidance for certification which will be added to the operational guidance.

You will have to undertake a specific risk assessment for anyone who is exempt to reduce the risk of transmission. This might include a change to their duties.

What records do you have to keep?

The manager will have to keep a record of the vaccination status of staff members (and any other visitors to the care-home who aren’t otherwise exempt) and the date they last checked it. They will need to record anyone who is medically exempt, but shouldn’t specify the reasons for this as you don’t need that information.

The guidance states that care-homes can’t rely on someone’s NHS appointment card to verify their vaccination status. The government are considering how the NHS COVID Pass service could be used to check and verify vaccine status. In the interim, you can rely on the NHS app, the existing online COVID Pass service or by checking an individual’s NHS COVID Pass letter.

GDPR and data protection issues

Information about who has or hasn’t been vaccinated will constitute sensitive personal health data. Care-homes must comply with GDPR rules on processing special category data, which means you will have to identify the lawful basis you are relying on for monitoring, who has access to the data; how long you will retain the data; how the data is stored; whether any privacy information needs updating; whether any Data Protection Impact Assessment requires updating; and whether any appropriate policy documents also need to be updated.

If you’ve not already started to collect vaccine data about your staff, you’ll need to start soon and explain to them why you need it. Then you’ll need to try and persuade those who don’t want the vaccine (as opposed to those who can’t have it) to be vaccinated and the deadlines that apply.

Persuading reluctant staff to be vaccinated

There’s loads of misinformation about the vaccines on social media and you should signpost where they can find reliable guidance. The government has published a range of resources with information about the vaccine that can support these difficult conversations. These are available in 19 different languages and links to them are included in the operational guidance.  

You will have to warn anyone who refuses to be vaccinated that they may lose their job. You can find read out the employment issues you will have to consider here

* This article first appeared in Care Markets at LaingBuisson under the title: No jab, no job: the clock is ticking.

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