Welcomed by many care home providers, yet met with grave concerns over individual liberties, in an unprecedented intervention by the government into the employment relationship, the Covid-19 vaccination is set to become mandatory for those entering and working in CQC registered care homes in England.
Only those who have had a complete course of the vaccine, or are exempt from it, will be able to enter. This excludes residents, their visiting relatives and friends, and those who are medically exempt, providing emergency assistance or maintenance, or those who are under 18.
Health and social care workers and others who need to go inside the care home premises to work, such as hairdressers, tradespeople and medical staff, will be affected. Likewise, those employed to work in administrative functions with little or no resident contact. The currently planned effective date of 1 October 2021 allows for a following 16-week grace period to enable them to receive both doses of the vaccine.
The new law will impose a mandatory CQC requirement for all those falling into these categories to be vaccinated. Entering a care home setting for work without proof of mandatory vaccination will be unlawful.
Additional consultation will consider whether to roll out this requirement to all frontline health and social care workers, including those offering domiciliary care services.
We considered the potential pitfalls and complications of a widespread mandatory vaccine requirement in our previous article [here]
Subject to the care home employer having considered how the employee’s employment could otherwise be maintained (such as through redeployment), and following a fair dismissal procedure, it should be possible to fairly dismiss an employee who refuses to be vaccinated.
The two potentially fair reasons to dismiss an employee (needed where the employee has more than two years’ service) which are most likely to be relied upon, are contravention of a statutory duty or restriction, or some other substantial reason of a kind which justifies the dismissal of the employee holding the position the employee held.
Care home employers could face grievances or claims, perhaps from those who object to vaccination for pregnancy or medical reasons, or on grounds of religion or belief, as a belief that vaccines cause harm could qualify for protection.
However, provided they act reasonably, employers should be able to successfully argue that protecting vulnerable care home residents by applying the law amounts to objective justification.
Resistance against making the vaccine compulsory has been well publicised by care sector organisations and trade unions, with many viewing such a mandate as disastrous for a care sector already struggling to recruit and retain staff, especially with the backdrop of Brexit.
A judicial review claim against the government and public health authorities is a possibility, on the basis that a statutory vaccination requirement disproportionately impacts upon the Article 8 right to privacy under the European Convention on Human Rights and certain protected characteristics under the Equality Act 2010.
Practical steps for care homes to consider include how to police those entering and how data on vaccination status will be retained. They should also look at whether any commercial terms with tradespeople or agency workers or internal policies need amending. Those changes may be needed to cover issues like managing time off for, or delays in getting, appointments, sickness arrangements for those who have adverse reactions to the vaccine.
These issues show that encouraging and educating staff to voluntarily have the vaccination and seeking to allay their concerns (possibly inviting a medical professional to help) remains the optimum route for care home employers and employees.