New Law Will Require Care Home Workers to Be Fully Vaccinated
The Government has announced that it will be mandatory for anyone working in a Care Quality Commission registered care home, and for residents requiring nursing or personal care in England to have two COVID-19 vaccine doses, unless medically exempt.
The announcement follows the Department of Health and Social Care's (DHSC) public consultation on making the COVID-19 vaccination a condition of deployment for workers in care homes with older adult residents in England, which it held with thousands of staff, providers, residents and families.
The change in law aims to better protect care home residents from death and serious illness and will be implemented by amending the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (SI 2014/2936) to insert a new provision in the fundamental standards in Part 3 of the Regulations. This new legislation will come into force in October 2021, subject to parliamentary approval and a subsequent 16 week grace period.
Who Does the Mandatory Vaccine Requirement Apply To?
The mandatory vaccine requirement 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. Others coming into care homes to do work, such as healthcare workers, tradespeople, hairdressers, beauticians, and Care Quality Commission inspectors will also be covered unless they have a medical exemption.
Based on the feedback received during the consultation period, the DHSC has widened the proposed exemptions set out in the consultation document to include:
- residents
- residents friends and family
- anyone who is medically exempt
- anyone assisting with an emergency or carrying out urgent maintenance work
- anyone working only in the external grounds of a care home
- anyone under the age of 18
A further government consultation is also expected on whether to extend the mandatory vaccination requirement to other health and social care settings.
Can Employers Fairly Dismiss Care Home Workers Who Refuse the Vaccine?
The consultation response has not provided any indication of whether the new legislation will enable an employer to fairly dismiss an employee if they refuse to be vaccinated. It also does not address the risk that implementing a mandatory vaccination scheme could lead to indirect discrimination claims against employers, as an employee's reason for declining a vaccination may be related to a protected characteristic under the Equality Act 2010, such as age, religion or philosophical belief.
Until the legislation is introduced and more guidance on these issues is provided, it is important that employers do not act on the Government's announcement until the law has actually changed. Up until that point, an employer wanting to dismiss an employee with at least two years' continuous service for refusal to be vaccinated would have to rely on one of the five potentially fair reasons for dismissal which in this context are likely to relate to misconduct or some other substantial reason (under section 98(1)&(2) of the Employment Rights Act 1996).
Employers must always follow a fair dismissal process, which will involve meeting with the employee to understand the reasons for their refusal to take the vaccine and to allow an exploration of the alternatives to dismissal. Employers should also consider the potential reputational risk and risk to workplace relations before dismissing an employee for refusing a COVID-19 vaccine before the new legislation is in force.