Last night, the House of Commons voted to approve the draft Regulations making it mandatory for anyone entering a registered care home in England to have been double vaccinated unless they are clinically exempt, subject to a short list of exemptions. There is a 16 week grace period from when the Regulations are "made". We expect the Regulations will be signed off by a Minister early next week following a review on 20 July by the House of Lords. As a result we understand care homes will have until early November 2021 to get ready unless the House of Lords decide not to pass the Regulations.
Despite concerns being raised about human rights and the lack of an impact assessment for the regulations, only a few Conservative MPs rebelled against the Government. Earlier in the day, the House of Lords Secondary Legislation Scrutiny Committee had expressed their own concerns about the Regulations. For example, why is no guidance published yet on what evidence of vaccination would be required and why is the use of PPE and masks sufficient to manage the risks for visitors but not staff or hairdressers attending at the home? What would the impact be in a sector already struggling to recruit?
Our view is that the Regulations could be challenged on human rights grounds. However, it will now be left for employees affected by the Regulations and their representative bodies to consider whether to challenge the new rules and as yet we haven't seen any suggestions that a judicial review will be initiated. As a result, all care homes now need to urgently implement appropriate systems to comply with the new regulations. There are still a number of areas where guidance is awaited so in this blog we share our thoughts on some of the key things that need to be done as soon as possible when the Regulations are made:
1. Notify all staff of the Regulations being passed and the requirement for anyone who has to attend a care home during the course of their duties to produce evidence of vaccination or a clinical exemption. Ideally providing them with your policy on vaccination.
2. Develop a system for obtaining and storing evidence of vaccination or clinical exemption. Acceptable evidence of vaccination is likely to be the same as that used for foreign travel. Evidence from the NHS APP, the NHS website or a letter/email from the NHS.
3. Make sure those gathering evidence or involved in recruitment understand the clinical exemptions. These are set out in the Green Book here and further guidance is awaited.
Our summary is that exemptions include:
- Allergic reactions - a prior systemic allergic reaction to the vaccine or prior allergic reaction to another mRNA based vaccine or similar reaction to another component of the vaccine including PEG
- Being acutely unwell or who have Covid-19 - The clinical evidence would only be valid for the period they remain unwell
- History of a previous episode of heparin-induced thrombocytopenia and thrombosis (HITT or HIT type 2)
- A clotting episode with concomitant thrombocytopaenia following the first dose of AstraZeneca vaccine
4. Consult with those staff who do not produce the requisite evidence in the next few weeks making clear that from the end of the grace period they will not be able to continue in their roles without the necessary evidence having been produced.
5. For those staff who cannot produce the evidence required, begin consultation about dismissal taking into account their relevant notice period. The discussions with staff should explore their reasons for objecting to the vaccine and whether they can be overcome. They should also explore alternatives to dismissal. Are there other roles where they would not be required to enter a care home? Bearing in mind the need to give contractual notice, which in some cases may be 12 weeks, some employees may need to be given notice in early August. Notice could be withdrawn if evidence of vaccination or exemption is subsequently produced.
6. Implement a system for obtaining and storing evidence of vaccination for visitors to the care home and preventing anyone who is not exempt from entering the care home. The exemptions are:
- Service users residing in the premises
- Someone providing emergency assistance
- Someone carrying out urgent maintenance
- Someone carrying out duties as a member of the emergency services
- Friends or relatives of a service user who is or has been residing in the premises
- Someone visiting a service user who is dying
- Someone attending where it is reasonably necessary to provide comfort or support to a service user in relation to a service user's bereavement following the death of a friend or relative
- Someone under the age of 18
7. Update recruitment documentation so the vaccination requirement is clear from the outset so only staff who can comply apply and ensure any offers of employment are conditional on evidence being produced.
8. Ensure all employees will agree to have any booster vaccinations that may be required at a later date.
In light of the need for employers to act quickly to change their process, Anthony Collins Solicitors have produced a detailed toolkit with resources to enable care providers to quickly implement the steps necessary. For further detail contact firstname.lastname@example.org.
Care organisations have previously warned that compulsory vaccinations could cause significant difficulties in a sector that already struggles to recruit enough people.