Matt Wort has previously outlined the employment-related implications of mandatory vaccinations in the care sector. However, the legal implications are far wider and together we have summarised some of the key regulatory and contractual issues that providers will have to grapple with.
The Government's consultation response makes clear that by October care home providers will be required to implement a new regime of mandatory vaccination for almost all those working in or visiting the home. This will be achieved by the amendment of the code of practice on infection control, with the requirement not to allow entry to a registered care home to anyone who has not been fully vaccinated unless they are;
- a resident,
- a friend or relative of the resident,
- they are exempt from vaccination on limited medical grounds, or
- it is reasonably necessary for the person to enter to provide emergency assistance or to carry out urgent maintenance.
A failure to comply with the guidance will amount to a breach of the requirement to provide safe care under regulation 12. In order to demonstrate compliance providers will be required to obtain evidence of vaccination or exemption and maintain a record available for inspection by the CQC.
The consultation response suggests that in London, only 23% of homes have at least 80% of their staff vaccinated, rising to only 40% in the southeast. While some of those staff may still need to be convinced to be vaccinated, it is clear that many will continue to refuse and are likely to either leave the sector or perhaps seek employment in domiciliary care where the provisions do not yet apply. There is little doubt that providers will face a significant challenge in maintaining safe levels of staff as required by regulation 13.
That comes at a time when many in the sector are already struggling to cope with the impact of the restriction on the movement of staff between settings. Those restrictions contain an exemption allowing the movement of staff on a temporary basis, where it is necessary to address short term staffing issues. It is likely that many providers will be forced into that very position. While the requirement for mandatory vaccination is presented as being necessary to keep residents safe, there is a clear and obvious risk that it will in fact have the opposite effect and cause yet further confusion.
The surprise widening of the proposals to include all but exempt visitors may also present challenges in relation to maintaining premises in a safe condition. While the draft code of practice suggests that entry may be permitted where it is required for urgent maintenance work, who is going to make judgments about what degree of urgency is required? Fear of breaking the requirements may result in safety-related work being delayed and in turn creating additional risk.
From a commercial perspective, providers will need to consider whether they have contracts in place which oblige contractors to comply with their Health & Safety policies on-site, as well as the reasonable instructions of care home staff? Do those contracts give the care home operator the right to refuse access to non-compliant workers, or could they be frustrating the supplier from performing their obligations if they refuse access to the home?
Many care home operators may already be having difficult conversations with suppliers, who may seek to use the changes as an excuse to terminate or increase their prices, citing the proposals as a change in the law.
Providers will also need to undertake a data impact assessment as they will be processing special category data (health information) about a wider group of people. Who needs access to the vaccination confirmation and how long will you retain this information? Will you have a different approach to suppliers who regularly attend, versus one-off visits?
While the objective of mandatory vaccination appears to be simple, the implications for care providers are going to be wide and will require careful consideration and preparation if the challenges outlined are going to be overcome.
If all unvaccinated care workers were sacked, in some parts of the country care homes would cease to function at all. They would be closed overnight as unsafe, leaving nowhere to send the frail but into hospital beds.