After some weeks of speculation, Matt Hancock announced to the Commons last night that mandatory vaccination of care staff will happen from October 2021. The outcome of the consultation on the subject has now been published and the rules have gone further than many had anticipated. The standout points from the press release and response to the consultation are as follows:
1. The rules will come into force from October, subject to a 16-week grace period from the date the regulations are made.
2. They will apply to any CQC registered care home (not just those who care for the elderly).
3. All employees will have to have had both doses of the vaccine to be able to work in the care home. (It won't be enough to require new starters to be vaccinated within a specified period).
4. The rules on having had both doses of the vaccine apply to anyone who enters the care home, subject to some limited exemptions and other than residents. Effectively a care home becomes locked down, such that only those people who have had both doses of the vaccine can gain entry.
5. There are medical exemptions for those with an allergy or condition listed in the Green Book here (with more details to be provided by the Government).
6. The people who can gain access without having both doses are those that have medical exemptions; residents of the care home; friends and family of residents who are visiting; those entering to assist with an emergency or carrying out urgent maintenance work; and those under the age of 18.
7. The use of the NHS app to show vaccine status is being explored.
8. A consultation will be launched on extending these obligations to the NHS and domiciliary care and supported living settings.
Employment law implications
We still need to see the draft regulations to give definitive advice. However, it is clear care home providers will need to continue their current work in encouraging employees who have yet to be vaccinated, to be vaccinated, unless they fall within one of the very limited exemptions. Where someone is refusing to take the vaccine, dismissal is likely to be the only realistic option once the legislation is in force. There will be a potentially fair reason in that it will be a breach of regulatory requirements to deploy the individual in their role. Providers will need to follow a fair procedure and explore alternatives (which there are unlikely to be). They should also be mindful of employee notice periods. For employees with a 12-week notice, period, decisions would need to be taken within 4 weeks of the new legislation coming into effect. We recommend providers should update their staff now and making clear that dismissal is a likely outcome if they do not have both doses of the vaccination. One to one consultation and support to staff with concerns about the vaccination is now the best way to ensure that individual's retention and determine whether a medical exemption applies.
Securing the home
There are numerous practical difficulties in ensuring that everyone who comes in and out of a care home has had both doses of the vaccine and our view is that this is a step too far. Does the postman leaving parcels who has no contact with residents really need to prove vaccination status? Providers will need to be updating all those they contract with to make clear the expectation that anyone who enters the home will have been vaccinated and that if they are not, they will not be able to enter and, potentially, the contractual arrangements would have to terminate. Care home staff will effectively have to act as vaccine security guards, a further burden on staff and additional cost for providers, so a digital app-based solution would be welcomed. In addition, the administrative burden on providers in evidencing their compliance will be significant. The regulations will be clear that it is for the provider to evidence compliance to the CQC and that the evidence is stored in accordance with data protection obligations.
We will provide a detailed briefing as further information is released.
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 2 doses of a COVID-19 vaccine unless they have a medical exemption.