Under a new law, everyone working in care homes has to be fully vaccinated to protect residents. The new legislation means from October – subject to parliamentary approval and a subsequent 16 week grace period - anyone working in a CQC-registered care home in England for residents requiring nursing or personal care must have two doses of a Covid-19 vaccine unless they have a medical exemption.
It will apply to all workers employed directly by the care home or care home provider (on a full-time or part-time basis), those employed by an agency and deployed by the care home, and volunteers deployed in the care home. Those coming into care homes to do other work, for example, healthcare workers, tradespeople, hairdressers and beauticians, and CQC inspectors will also have to follow the new regulations unless they have a medical exemption.
Health and Social Care Secretary, Matt Hancock said: “Vaccines save lives and while staff and residents in care homes have been prioritised and the majority are now vaccinated we need to do everything we can to keep reducing the risk.
“Through our consultation, we have listened to the experiences and concerns of providers and people living and working in care homes to help shape our approach.
“We have a responsibility to do all we can to safeguard those receiving care including in the NHS and so will be consulting further on whether to extend to other health and social care workers.
“This is the right thing to do and a vitally important step to continue protecting care homes now and in the future. I’d urge anyone working in care homes to get their jab as soon as possible.”
Trouble for employers
Reacting to this development, Samir Moftah of Manak Solicitors told Asian Voice, “It is not a surprise that Mr Hancock seeks to make vaccinations compulsory for care home staff. They appear to be successful with a relatively high uptake by the general public. Vaccinations will be seen as critical to both the safety of patients and staff. If the proposals are brought into law, employers will face the administrative burden of maintaining and updating records of compliance. If this is not carried out, CQC action is likely to follow. This will be a significant challenge for the sector, which is already facing recruitment difficulties as well as burnout of staff in a notoriously difficult role. Should employees not wish to be vaccinated and there are no alternative roles within the organisation, it is likely to lead to dismissal and a rise in Tribunal claims being brought. Employers will rightly be concerned as to a rise in claims for unfair dismissal which will include elements of human rights law and the Equality Act. An employer may even bring a Judicial review application to challenge any change in the law. It will be interesting to see how Courts tackle these complex points of law and how decisions affect care in the sector.”
Meanwhile, there will be exceptions for visiting family and friends, under 18s, emergency services and people undertaking urgent maintenance work. The Social Care Working Group of the Scientific Advisory Group for Emergencies (SAGE) advises an uptake rate for one dose of 80% in staff and 90% in residents in each individual care home setting is needed to provide a minimum level of protection against outbreaks of Covid-19.
While the majority of care home workers have now been vaccinated, only 65% of older care homes in England are currently meeting the minimum level of staff uptake for one dose needed to reduce the risk of outbreaks in these high-risk care settings – falling to 44% of care homes in London.
More than 1.2 million social care workers, (78%) in England have now taken up the vaccination - an important step in protecting themselves, their loved ones, and the people they care for from becoming seriously ill or dying from Covid-19.
What’s imperative to note, is that taking the vaccine is also a choice.
New law hard to reconcile with
Speaking to Asian Voice, Sandip Patel, Managing Partner Aliant Law said, “New laws for the compulsory Covid vaccination of care home workers will be hard to reconcile with existing laws and regulations. On the one hand, care homes have a number of legal obligations that they owe to their residents, staff and visitors. However, the new laws raise a number of employment law considerations which will result in legal challenges for claims of unfair dismissal under the Employment Rights Act 1996. Besides concerns about employment law, there are data protection concerns. Other pieces of legislation that will be impacted are the Health and Social Care Act 2008 and existing CQC regulations, as well as section 60 of the Equality Act, which makes it generally unlawful for a job applicant to be asked about vaccination at all.”
Welcoming the new legislation
Elizabeth Johnson, Legal Director and Alex Huston, Solicitor of Axiom DWFM told the newsweekly, “The government has reduced the risk of employment claims from care home staff in England by mandating Covid-19 vaccinations (*subject to certain exemptions). Previously care home employers needed to tread cautiously to avoid discrimination claims in an already over-stretched staffing sector. By making it a legal requirement for frontline staff such as these to be fully vaccinated, the position becomes clearer for employers that they must redeploy or potentially consider dismissal for “some other substantial reason” for non-exempt staff. Employers still need to ensure a full and fair procedure in any dismissal situation and should now consider how to manage refusals and issue new vaccination policies. We will be advising our employer clients as to good practise in what could be the first of many sectors.”
Mahesh Patel, Chief Executive Minister Group said, "The care home sector has arguably been impacted more than any other during the pandemic. We've all seen the devastating impact that covid has had on our residents, staff, and families of both. If there is an opportunity to mitigate the effects of the virus and try to get back to some sort of normality then there's no doubt we should all take it. Vaccination is vital to safeguarding our residents and staff. I've had mine because I feel it’s important that I demonstrate my commitment to protecting everyone I encounter in my daily life, and I would hope that all of my staff follow me by having their jabs. If they don't, then I'm afraid we have to consider whether the risk to residents and their colleagues is simply too great and ask whether they are capable of doing their job effectively. "
