The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 will come into force on 11 November 2021 and will make COVID vaccination compulsory for care home staff. Here we examine some of the key questions you may have.
What do the regulations say and why have they been introduced?
Given the higher risk COVID poses to residents of care homes, who are generally elderly or vulnerable (or both), when compared to the general population, the government decided to make the COVID vaccine mandatory for anyone working in a care home. It’s not a decision without controversy and it has been acknowledged that requiring anyone to undergo a vaccine as a condition of keeping their job is a highly unusual step. However, the government’s line on this – which will sound familiar – is that the pandemic is an exceptional situation and that unusual steps are needed to tackle the crisis.
What if an individual can’t have the jab for a medical reason?
The regulations anticipate this scenario and make it clear that where someone can’t have the jab for a medical reason, they will still be allowed to attend work, provided they can provide evidence of their medical exemption or, in the short term, self-certify their exemption. The actual numbers falling within this exemption will be low.
Do the regulations just apply to frontline care workers?
No, the rules apply to anyone working inside a care home. There are some specific exemptions (see below) but otherwise, the rules apply to all staff regardless of the role they carry out and regardless of whether they actually have any direct contact with residents during their day-to-day work.
What about families visiting relatives in care homes?
The regulations contain a fairly lengthy list of exemptions that apply, the most significant one being that people visiting residents do not have to be fully vaccinated. This includes friends as well as family members. This gives rise to a slightly bizarre scenario whereby an individual turning up to work at a care home without being fully vaccinated would have to be turned away, but the same person attending in their capacity as a friend or relative would be allowed in!
Whilst there are various other exemptions that could apply, in practice these will only apply in a limited number of scenarios.
What are the timescales on this?
The deadline for care home workers to be fully vaccinated is 11 November. Anyone not fully vaccinated by that date is strictly forbidden from entering the care home unless one of the exemptions applies. This means that workers will need to have received their first jab by 16 September in order to get the second jab in time for the deadline.
Anyone who is willing to get the jab but misses the deadline could ask their employer to try and bridge the gap (e.g. with holiday and/or unpaid leave) but this is only likely to be a feasible option where the delay is relatively short.
What if somebody won’t have the jab?
Unless the employer can relocate them to a building without any residents (e.g. a separate head office) the likelihood is that they will be dismissed. Such dismissals are likely to be fair provided a proper consultation process has been followed by the employer.
So is this good news or bad news for care home operators?
It depends on your viewpoint. On the plus side, it provides certainty for operators who were otherwise stuck in a bit of a quandary when dealing with employees refusing to get the COVID vaccine. However, it is likely to lead to operators having to dismiss employees that they would otherwise want to keep, and many operators are already struggling with severe staffing shortages.
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Matt’s expertise cover all areas of Employment law. He has considerable experience of advising clients on complex employment litigation, senior hires and exits, large-scale redundancy exercises and complicated TUPE issues.