Mandatory Vaccinations for those working in the Care Sector: August 2021 Update
As detailed in my previous article, the Covid-19 vaccinations will become mandatory for all those working in care homes.
The government has passed the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (Covid Regulations) obliging care homes to ensure (almost) all workers are vaccinated against Covid-19. The Covid Regulations, which only apply to England, come in to force on 11 November 2021. Do note that the Covid Regulations only apply to care homes and not home care/domiciliary care providers.
The Covid Regulations will not only apply to employees and workers in care homes but will also extend to agency workers, volunteers, healthcare workers and tradespeople that might enter the care home. The Covid Regulations state that a care home provider must prevent anyone from entering the care home if they are not fully vaccinated unless they are one of the following exceptions:
- A care home resident;
- Family and friends of a care home resident;
- An emergency assistance provider such as paramedics and police;
- An emergency maintenance provider such as an emergency plumber or electrician;
- Those visiting a resident who is dying;
- Those comforting a resident following a bereavement; and
- Children under the age of 18.
To assist with the implementation of the Covid Regulations, the government has published some general guidance. The guidance includes useful information for employers and employees such as acceptable proof of vaccination status and the right to dismiss employees who refuse the vaccine for non-medical exemption purposes.
If someone does not fall into one of the identified categories, the care home must not allow them entry unless they provide evidence that they are fully vaccinated or medically exempt. Medical exemptions will be in line with chapter 14 of the Green Book on Immunisation against infectious disease and, on the information currently available, one medical exemption will be a medical history of anaphylaxis associated to any of the ingredients in the vaccine.
The general guidance states that there will be a clear process to follow for staff who think that they may be medically exempt and that the guidance for certification is currently being developed. Once the exemption certification guidance has been published we will provide a further update. Hopefully, the guidance will provide further information on what will constitute a medical exemption.
The Covid Regulations only provide exemptions for medical reasons. The protected characteristics provided by the Equality Act 2010 such as religion and philosophical belief does not make a person exempt from the Covid Regulations. This is also true of those who do not wish to have the vaccine for personal reasons.
Dismissing employees who refuse the vaccine
Care homes must still act reasonably and fairly when dismissing an employee for a potentially fair reason (in this case a failure to be fully vaccinated for non-medically exempt purposes). Employers must ensure that they follow a fair procedure and act reasonably in dismissing the employee. Some examples of a fair procedure includes warning the employee of the risk of dismissal if they do not evidence their exemption or become fully vaccinated, allowing the employee to be accompanied at any meeting by a trade union representative or work colleague, and also applying the same approach consistently amongst employees where relevant.
Employers should also ensure that employees are given the greater of contractual or minimum statutory notice (or payment in lieu of notice if the contract of employment contains the relevant clause). Statutory notice is calculated as one week’s notice between one month and two years, and one week’s notice for each additional year over two years up to a maximum of 12 years/12 weeks’ notice. An employee’s failure to get vaccinated will not amount to gross misconduct and therefore employees must still be given notice.
In light of the fact that unvaccinated employees (accept those not exempt) will not be able to enter the care home from 11 November 2021, thought should be given as to how an employee’s notice will be completed. Depending on the employment contract, employers should consider payment in lieu of notice or placing the employee on garden leave.
At GA Solicitors we have significant experience in advising those in the care sector and we actively encourage employers and employees who will be affected by the proposed legislation to contact us.
You can contact me directly by emailing kayleigh.arthurs@GAsolicitors.com or by calling 01752 203500.