ACAS has published guidance to help CQC-registered care home employers and employees. The guidance encourages employers to speak with staff (including those absent from work) about the new requirements before 11 November 2021.
If an employee has a medical exemption, the reason for that exemption should not be recorded. This is to protect the employee's confidential medical information and comply with UK data protection law.
As a temporary measure, if people working or volunteering in care homes are unable to have the vaccine for medical reasons, they will be able to self-certify that they meet the medical exemption criteria. This measure will be in place pending the introduction of the NHS COVID Pass system.
Once the NHS COVID Pass system has launched, individuals will need to apply for a formal medical exemption and any self-certification will expire after 12 weeks.
Individuals who have received a COVID-19 vaccination abroad can also self-certify as medically exempt using the self-certification form for people vaccinated abroad.
The guidance makes it clear that as long as the employer follows a fair process, the regulations may provide a fair reason for dismissal.
In our last article we advised that 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.
Employers will be protected from discrimination claims on the grounds of age, disability, religion or belief. They will not breach the Equality Act on these grounds by following their requirements under the regulations when working to make sure that unvaccinated care workers do not enter a care home.
These exceptions will be important for those employers who may have to dismiss staff as a result of the regulations, as long as a fair procedure is otherwise followed and the dismissal is carried out in a fair and non-discriminatory way.
However, employers should note that this exception does not apply to race, sex, sexual orientation, pregnancy and maternity, gender reassignment, marriage or civil partnership discrimination. Employers should therefore be exceptionally mindful of this.