11 Nov - Compulsory Vaccinations for Care Home & Healthcare Workers
In accordance with the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021, all Care Quality Commission (CQC) registered care homes must ensure (subject to limited exceptions) that only people who are fully vaccinated against COVID-19 may enter the premises.
The result of this means that from the 11th November 2021, anyone who works or even volunteers in a care home must be vaccinated unless they are exempt.
The CQC requires that any new and existing providers need to have adequate processes in place to record and monitor the vaccination status of staff, volunteers and contractors.
Who is exempt from the requirements?
There are limited exceptions to the requirements:
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Care home residents and their friends and relatives
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Those providing emergency assistance
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Those providing emergency maintenance
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Emergency service personnel executing their duties
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Those providing comfort or support to a resident following a bereavement
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Under 18s
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If you are clinically exempt
In addition, staff who are not required to enter the building (e.g. gardeners or groundskeepers) are not covered by the new Regulations.
Subject to these exceptions, the regulations will apply to anyone who enters a care home as part of their professional responsibilities such as staff who are usually based at head office or off-site (e.g. trainers, HR) and those who may visit only occasionally such as hairdressers.
What evidence does an employer need?
Evidence from the NHS app, the NHS website or a COVID Pass letter will suffice.
If an employee is not prepared to have the vaccine, what should you do?
There are going to be people who are not prepared to have the vaccine. Subject to following a fair and appropriate process you can legitimately terminate their employment if they refuse.
As an employer, you will need to carry out individual consultation to those who refuse the vaccine.
Care homes will need to consider whether they have any vacant roles within their organisation which do not involve entering care homes and offer any employees the opportunity to apply for such roles before terminating their employment.
The Government guidance offers employers two potentially fair reasons for dismissals of staff who are unwilling to have their jabs who cannot be redeployed:
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If the employee cannot continue to work in their position without the employer contravening a duty or restriction imposed by or under an enactment (Illegality); or
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Some other substantial reason of a kind as to justify the dismissal of an employee holding the position which the employee held. 'Some Other Substantial Reason' or SOSR is a recognised employment term.
The guidance also suggests that an employer should consult with and warn employees, allowing them to be accompanied at meetings, taking and sharing notes of any meetings and providing a right of appeal against the decision.
Vaishali Thakerar, Director & Employment Solicitor
Lawson West Solicitors, Leicester
"With over 11,000 care homes nationally and over 1.5million people working in adult social care alone, we can expect to see many healthcare workers who refuse the vaccine based on their personal preference and strongly held views. However, from 11 November employers are legally-bound to uphold the Covid-19 law of vaccination of health care worker employees and are legally justified to dismiss any member of non-exempt staff who refuse the jab."
If you are affected by the new legislation, please contact Lawson West Solicitors who can help you to manage the process of communication, redeployment, warnings and dismissals."
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