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Care Home Staff Will Be Required by Law to Be Double-Vaccinated from 11 November 2021

on Friday, 06 August 2021.

On 22 July 2021, it was announced that regulations under the Health and Social Care Act 2008 will make vaccination compulsory for care home staff working in a Care Quality Commission (CQC) registered care home from 11 November 2021.

Workers who are clinically exempt will not be required to be vaccinated.

Who Will Need to Be Vaccinated?

The regulations also mean that anyone who enters a CQC registered care home (including volunteers and agency workers) must be double-vaccinated unless an exemption applies.

Care homes that do not comply with the requirements could face regulatory action from the CQC.

Who Is Exempt From the Requirement to Be Fully Vaccinated?

  • service users
  • those who are exempt for clinical reasons
  • people providing urgent maintenance or emergency assistance
  • friends and relatives of service users
  • people visiting dying service users
  • those under the age of 18

Note that this makes it clear that a refusal to be vaccinated for anything other than clinical reasons (for example for religious or ethical reasons) will not be an acceptable reason for care home staff.

Wider Applicability?

The government is apparently also considering whether vaccinations should be mandatory for health workers.

It is worth keeping track of this change, and keeping up to date with any potentially wider applicability.

For those employers managing workers or volunteers in a care home environment, it will be necessary to put checks in place to make sure that vaccinations can be effectively monitored. Enforcement may be challenging and  should be handled carefully, especially where it might lead to dismissals and therefore potential claims of both unfair dismissal and discrimination.

We discussed in our previous announcement of the proposal of such legislation the potential pitfalls.

Potential Discrimination Risks

Currently, only regulated care homes will be able to legally require workers to be vaccinated from 11 November 2021.

Where this is not a legal requirement, it is possible that an employer who requires a particular employee to be vaccinated, or who treats an employee less favourably because they are unvaccinated, could be directly discriminatory contrary to the Equality Act 2020.

A mandatory requirement for employees or job applicants to be vaccinated is likely to amount to a provision, criterion or practice (PCP) that puts individuals with a protected characteristic at a particular disadvantage compared with others who do not share that protected characteristic, giving rise to an indirect discrimination claim.

A requirement to be vaccinated could put individuals with the following protected characteristics at a particular disadvantage:

  • age
  • disability
  • pregnancy or maternity
  • sex
  • race
  • religion or belief

An employer may be able to justify a mandatory vaccination requirement where it can show that this is a proportionate means of achieving a legitimate aim. However establishing proportionality may be challenging, as compliance with the COVID-secure guidelines, introducing regular testing, homeworking or redeployment may be less discriminatory ways of achieving the same aim.

If you have any questions about this article, or are concerned about the implications on the new legislation, please contact Ellie Boyd in our Employment Law team on 07393 148143, or complete the form below.

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