COVID 19 | Care home providers
COVID 19 | Care home providers
With homecare and care home providers looking after the people who are most vulnerable to the coronavirus, what is the legal framework surrounding the choices that providers need to make?
In this webinar, we’ll discuss what providers can do to ensure they can stay operational and safe in these uncertain times.
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Hello, and welcome to today's webinar. I'm Lisa Botterill and I'm a corporate and Commercial partner here at Shakespeare Martineau. And as part of my work. I asked for a number of Care Homes.
I'm going to talk about some legal issues currently affecting providers of Home Care and Care Homes. I'm not going to talk about all the guidance that I know that you have received from the government and local authorities about how you should deal with the outbreak from an operational point of view as the guidance is clearly there to be followed.
You will see on your screen that you are able to ask questions. So please do ask along the way and I can answer some of these at the end. And for any that we don't have any time for or where I need to consult with a colleague before coming back to you. Rest assured. We'll do that and come back to you just as soon as we can.
Firstly I will take you through a couple of scenarios and talk through the legal position.
The first example I want to talk about is where the manager of a care home has an existing health condition that would put her on the list of people who have been advised to self isolate for at least 12 weeks.
She is however continued to come into work. Although there is much of her job that she can do from home.
Can the employer make her stay at home? And what does he need to pay her if he makes her stay at home rather than choosing to self isolate.
This is a question. I've had from a from a client just in the last week. So I thought it would be helpful to go through the options.
I'd say that the first thing you need to do is a risk assessment and then the employee ought to be sent home immediately.
The current guidance from public health England is that individuals with any of the listed underlying conduct health conditions is at far greater risk of complications caused by the virus and so should absolutely be staying at home. If the employee refuses to go home. Then that would become a disciplinary issue essentially for failure to do what they've been to asked to do.
However in the current start circumstances, I really wouldn't expect an employee to refuse to go home.
In fact, if any of your employees could go home and work from home, then they should be encouraged to do so in all circumstances that would apply for example to any admin or head office staff that you have who aren't delivering Frontline care to service users users. They should all be asked to work from home and continue to receive their full pay.
If you have an employee who can't work from home for whatever reason for example is a member of Care staff for a care home provider or a home care provider where their job involves going out to deliver care services.
If they're also in a vulnerable group who have been advised to stay at home then our current advice in this scenario as to what the employee should be paid is that they would be entitled to SSP and not full pay.
I have to say that this is still a little bit of a gray area as we've never before had a scenario like this where essentially a statutory body is turning people not to go out to work to protect their health, but on the basis that they should be staying at home voluntarily already rather than being forced to do. So if they just followed the public health England guidance, they would only have been entitled to SSP any employees who have ignored that guidance and come to work doesn't mean that they should be entitled to full.
When you ask them to follow the guidance.
So just to summarize if an employee can work from home they should do so and get full pay.
And if they stay at home and self isolate without working, then they should be paid SSP and that is whether you have made them go home or whether they have voluntarily gone home.
The next scenario would like to go and look at is an employee of a care home agency who has a person in their household who is on the list of vulnerable people who should sell fire slate for 12 weeks. Do they still have to come to work?
Well up until last Friday. The situation was probably more complicated as essentially the employee was as an individual still fit for work.
So essentially they were going to not come in when they were fit for work and that may well have meant they were not entitled to any pay.
However, the new government scheme that was announced on Friday is probably the best way of dealing with this employee from now on.
Under the new coronavirus job retention scheme, the government will pay 80% of an employee salary up to 2,500 pounds per month for up to three months and can be backdated to the first of March.
The current view is that this can only be used for employees who are not doing any work at all. So they can't reduce their hours or have a week off and then a week on they have to essentially be sent home and do absolutely nothing. Now.
What I will say is that there will be a lot more detail coming out about this scheme in the next few days, but at the moment we are still waiting for that guidance, but we will be able to share Guidance with you as soon as it comes out in the coming days.
So that was just a summary of a couple of the employment scenarios that we've been asked about in the last few days. I'm now going to move on to something else that I've also had some inquiries from a couple of clients about and which is the position on granting access to visitors to a care home.
My current advice on this to clients that have called is that essentially firstly you have to do a risk assessment.
And as long as you've done a risk assessment and the risk is to service users you can.
And probably should be excluding as many visitors as possible from the home.
I'm sure many of you are already doing this as a matter of good practice, but provided that you have done a risk assessment that backs it up that.
Shows there is a significantly increased risk in the current circumstances of allowing access to the home from a legal standpoint. You are absolutely fine to restrict access as much as possible to the home.
The risks associated with an infected person entering the home a far greater than the needs of relative to see their loved ones at this time.
And of course there are circumstances where a home could indeed come under criticism. If the virus weren't were to enter a home as it has already sadly done in some cases, but you certainly won't be criticized for keeping the virus out.
I do know from a few of my clients that GPS and Commissioners are trying in the vast majority of cases to carry out consultations via electronic means for safety reasons on also that CQC have suspended inspections unless there's something about which they are particularly concerned.
And so request from these kinds of sources to access for the home should be much less than they previously were. However, I would say you still have a duty to allow access to healthcare professionals and statutory bodies. Should it be requested but of course, I know that you will take as many precautions as possible around allowing Outsiders access to the premises.
The next scenario wanted to cover again is an inquiry of had where this local ccg were trying to place a service user with a care home that had tested positive for covid covid-19. And the question was are we obliged to take them?
The answer to the question does essentially depend on what sort of contract you have.
If you have a block contract for taking people from hospital, then under the terms of your contract, you are likely to be obliged to take any service users that fall within your contracted terms.
If however you would normally be contracted on a one-off basis, it's up to you whether you feel comfortable that you can put in place necessary measures to meet the needs of that service user or not.
You are not obliged to take a resident.
If you don't think that you can meet their needs or if it would have two large and impact on your ability to meet the needs of your existing service users particularly where you may be short of staff due to staff members self-titled isolating and the like there will be really difficult issues that you may have to consider in coming to your decision.
It may well be difficult to manage a patient with dementia because although the recommendations are that service users with covid-19 need to be isolated that may well be impractical in service users with dementia who would in ordinary circumstances wander around the home as a matter of their usual Behavior.
You will have to think very carefully about whether you will be able to manage the behaviors of a potential service user before making that decision as to whether or not to admit them. But as long as you've assessed all the risks and come to your decision, then you should go with the outcome that your risk assessment determines.
Moving on now to look at some economic measures. I have had questions from a couple of clients asking whether any of the Chancellor's newly-introduced economic measures that have been announced are aimed at helping those in the care sector now. I have seen some comments floating around saying that the scheme where the government pays 80% of the salary for employees only applies to those in the hospitality and hospitality and Leisure sector.
Well it doesn't it definitely applies to all businesses.
And it's these employees are now referred to as furloughed employees. As I mentioned earlier. This could these new rules could well come in handy where businesses have employees that have to stay at home for health reasons and also while businesses can they are not obliged to pay the 20% balance of the wages.
What we haven't yet understood is how that Arrangement interacts with the minimum wage legislation.
And I'm conscious that because the care sector is a relatively low pay sector this the impact of this could be significant as if the government's eighty percent contribution doesn't make up the minimum wage. Those employees won't be being paid the minimum wage. That is a scenario that we're still looking for some clarity on and in the coming days. Once we have the clarity on that we will be making some further announcements.
The Chancellor's economic package was that was quite considerable when it was announced with a bit of a Fanfare on Friday evening, and it did contain quite a quite a wide-ranging number of measures. However, I'm not yet convinced that any of them were specifically aimed at the care sector in particular which is obviously facing quite a large challenge in looking after people who have been infected by the virus.
Things such as the deferral of v80 won't help because Care Homes aren't v80 registered. The business rates deferral scheme also doesn't apply to Care Homes because that only applies to businesses in the hospitality sector and also to those with that have a relatively low rate of all value, which is unlikely to cover most Care Homes.
There is also the business Interruption loan scheme.
Where businesses can employ apply for loans up to 5 million pounds over a period of six years, but that does they that scheme doesn't really address the current challenges faced by the care sector which are on more of a day-to-day basis rather than a long-term requirement for funding.
I know that care homes in particular had put in a request that P aye could potentially be deferred which would be of particular assistance to care providers. But this hasn't yet been brought in and from my research it does there doesn't appear to be any intention to bring anything like that into Healthcare Providers, unfortunately.
So in summary currently in terms of the economic measures that are in brought in there is the there is the 80% scheme for employees if they have to be sent home, but unfortunately the government hasn't done anything else yet to specifically assist those in the care sector. Thank you very much for listening to today's webinar. I've had a few questions that have come in while while the webinars been live a number of them relate to the detail of some of the government scheme.
Page percent of wages. So we'll come back to people once we have got a bit more detail on those.
What we will do is send some follow-up along with the recording of the webinar. But one of the questions that's come in is as a care home provider. Are you suggesting that we can completely exclude all visitors to the home even for those service users who are right at the end of life.
what I'd say on this is while it is a desperately difficult and sad situation as many people will want to try and spend as much time as possible with their loved ones at the end of life provided that your decision is backed up with a risk assessment which in the current climate and because essentially people are carrying the virus with no symptoms at all is very easy to do if you feel it is necessary then absolutely you can exclude any visitors or relatives from the No matter what the circumstances in order to minimize the risk to your service users.
If you are going to do this, it would obviously be sensible to look at alternative methods of communication that are available and I know that a number of Care Homes have been doing this using Whatsapp FaceTime Skype or Zoom to allow contact between service users and their families. But if you feel it is absolutely necessary. Yes, you would be absolutely within the law to exclude any visitors from the home.
all the period of the outbreak and then another question that's come in is that obviously, although I've said that none of the Chancellor's recently announced measures are particularly aimed at the care sector do I know anything about the five billion pound van that was announced to help the social care sector in the budget as far as I'm aware. There aren't any specific plans for how this is to be allocated yet. But what I do know is that urgent consultations are taking place with a view to getting this.
Out to care providers just as soon as possible and while there aren't any details yet. I would expect there to be some assistance given to pay for the additional costs of dealing with the coronavirus outbreak as I say while there aren't any details on this yet. I would expect something coming out very very soon to help care providers.
Thank you very much for listening that brings the webinar to a close. For All Our advice and guidance on coronavirus. Please contact our dedicated resource Hub at shma.co.uk or you can't can contact me on Lisa Botterill at shma.co.uk and for all those who registered for the webinar today, you will receive a copy of the slides and answers to the questions in due course. Thank you very much. Goodbye.
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