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30th July, 2021

Covid-19 Vaccinations To Become Mandatory For…

Covid VaccinationsToBecomeMandatoryForStaffWorkingInCareHomeProvidersInEnglandFromNovember

Covid-19 Vaccinations To Become Mandatory For Staff Working In Care Home Providers In England From 11 November 2021.

The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (“the Regulations”) has become law after it received parliamentary approval on 22 July 2021. We set out the new rules and explore what this means for employers within the care sector.

Q1. What are the new rules?

All Care Quality Commission (CQC) regulated service providers will need to ensure that staff are fully vaccinated (received two doses of the COVID-19 vaccine) from 11 November 2021. The Regulations will apply to all CQC providers who provide accommodation together with nursing or personal care. It is therefore not just older adult care homes caught by the Regulations but any caring facility which meets the above requirements.

The 16-week grace period began on 22 July 2021 (the date the Regulations received parliamentary approval) to enable staff to take up the vaccine if they haven’t already done so.

NHS Guidance recommends individuals receive their second vaccine 8 to 12 weeks after they have received their first dose. This would mean an individual should have received their first vaccine by the 16 September 2021 to ensure they are fully vaccinated by the time the Regulations come into force (although employers should be mindful it is possible to receive the second dose earlier than 8 weeks after their first dose).

Q2. What is the reasoning behind these new rules?

The aim is to maximise vaccination numbers to protect residents identified most at risk and minimise the risk of transmission in care homes.  Whilst government figures suggest that the majority working in the care sector have now been vaccinated, there are concerns of low uptake in certain areas in England which is not consistent with the level needed to minimise the risk of outbreak.

The requirement applies to registered care home providers only; however, there is ongoing consultation on this being extended across the wider healthcare and social sector. The consultation will also consider whether flu vaccinations should be mandatory.

Q3. Who will this affect?

The Regulations will apply to all workers in CQC registered care homes. This will include those contracted on a full-time or part-time basis, whether they are employed directly by the care home, via an agency or volunteering. Notably, individuals entering the care home to perform non-care work such as hairdressers, CQC inspectors, tradespeople and healthcare workers will also need to adhere to the new requirement.

Q4. Who is excluded from the requirement?

The following people will be excluded from the requirement:

  • persons who are clinically exempt (further detail to be confirmed in DHSC guidance);
  • residents of the care home;
  • friends or relatives of residents;
  • persons providing emergency assistance or maintenance of care homes;
  • persons under the age of 18; or
  • persons who work only in the outdoor surrounding grounds of the care home premises.

Q5. What will this mean for affected employers?

It is important for employers to have a clear understanding of the Regulations so they can effectively prepare ahead of November. We set out our recommendations below:

  • Identify which members of staff will be affected by the Regulations: See Q3 and Q4 for further information.
  • Notify Staff: We recommend notifying staff early on that mandatory vaccination will be implemented in your organisation from 11 November 2021. You could also consider educating employees about the vaccine’s safety and health benefits and address any concerns to encourage employee participation in the vaccine programme before it becomes a compulsory requirement.
  • Adopt a vaccination Policy: Having a vaccination policy will be helpful to clearly communicate your organisation’s position and handle any potential workplace disputes regarding vaccination. Whilst many employers have already chosen to adopt a “no jab, no job” policy as a measure to protect their residents, this new requirement extends beyond care workers to any professional visiting the care home – subject to the exclusions mentioned above – therefore any policy would need to be amended to cover this.
  • Keep a Record and comply with data protection legislation: Employers will need staff to provide proof of vaccination, or proof that they are medically exempt, and keep a record to demonstrate compliance. Employers should be mindful of data protection considerations and carry out a data protection impact assessment (DPIA) beforehand as health data is classified as “special category data” under the UK GDPR and requires a higher-level of protection.

Q6. What are the potential employment risks for employers in the care sector?

  1. Unfair Dismissal

Employers may consider dismissing an employee who refuses to have a COVID-19 vaccine. This could give rise to unfair dismissal claims if the employee has 2 years’ continuous service. It would then be up to the employer to show that the decision was fair and reasonable in all circumstances. When assessing fairness, the Employment Tribunal would consider the specific facts i.e., whether there was a fair reason, the reasonableness of the employer’s decision to dismiss, the rationale behind the employee’s refusal and the possible alternatives to dismissal. Obviously, as there is a legal requirement for workers to be vaccinated (notwithstanding the wider reason of protecting vulnerable residents from infection), the employer would be able to put forward a strong defence.  Nonetheless, the decision to dismiss is not without legal risk therefore we would recommend for employers to seek legal advice and consider other options short of dismissal before making a decision.

  1. Discrimination

The Equality Act 2010 (the Act) protects individuals from discrimination who have a ‘protected characteristic’.

The Regulations state that an individual will only be legally exempt if they are unable to be vaccinated for clinical reasons (details of which are yet to be disclosed).  It does not apply to those who refuse on other grounds, such as pregnancy or religion. There are advocates who want to widen the exemptions to cover religious beliefs, however it appears the government is cautious not to create a system which undermines the policy aims or where individuals can circumvent the requirements. As such, the exemptions are limited to medical health reasons.

This decision by the government may leave employers open to discrimination claims, most likely indirect discrimination.  Indirect discrimination occurs when a policy, practice or criterion has the unintended effect of disadvantaging a group of people with a particular protected characteristic. Where such policy exists, it will amount to a finding of indirect discrimination unless an employer is able to show that its actions were objectively justified and a means of achieving a legitimate aim.

In this situation, employees may argue that the policy of mandatory vaccination is indirectly discriminatory because they believe that the policy puts them at a disadvantage compared to others who do not share that same protected characteristic.

We expect claims are likely to be centred around the idea that mandatory vaccination goes against someone’s religion or belief. Many religious organisations are pro-vaccination, with religious leaders supporting the scheme and encouraging followers to participate in the immunisation programme. Despite this, there are concerns about the manufacturing process/materials used and there are a small number of religious groups against vaccinations in principle.

In terms of belief, the recent ruling that ethical veganism is capable of being a protected belief may mean that individuals who refuse to be vaccinated due to concerns around animal testing can bring a claim.  Not everyone will be successful in their claim as it will depend on the particular circumstances. For a person’s belief to be protected under the Act, it must meet all the following characteristics:

  • be genuinely held;
  • be a belief (and not an opinion or viewpoint based on the present state of information available)
  • be a belief as to a weighty and substantial aspect of human life and behaviour;
  • attain a certain level of cogency, seriousness, cohesion and importance; and
  • be worthy of respect in a democratic society, be compatible with human dignity and not conflict with the fundamental rights of others.

There is not a consensus within the animal rights community around vaccination. With ethical groups such as PETA encouraging people to follow their health care provider’s advice – the justification being that refusing vaccination will not discourage animal testing. This may limit the number of claims brought forward.

The Regulations are likely to create conflict with “anti-vaxers” in that they have a strong belief that vaccines are against public health.  Fortunately, this group are unlikely to meet the high threshold of a protected belief under the Act as it would lack the level of cogency and structure needed to qualify as referred to above.

If an employee brings a claim, an employer would be able to rely on the legislative requirement to show that enforcing the policy it is a proportionate means of achieving a legitimate aim. It would be difficult to criticise an employer trying to reduce the rate of transmission and protect vulnerable residents, particularly as the policy was mandated by the government and not the employer themselves. Unfortunately, there is little that can be done to prevent an employee bringing a claim and the legal costs and wasted time that comes with defending it.

  1. Human Rights

There is an argument that mandatory vaccination may amount to an invasion to privacy (Article 8) and a breach of freedom of thought, conscience and religion (Article 9) of the European Convention on Human Rights (ECHR) to which the UK remains a signatory of. We may expect the Regulations will be challenged in the European Courts on these grounds.

Whilst the ECHR has not made a judgement on mandatory COVID-19 vaccinations, the recently ruling in Vavřička and others v Czech Republic suggests government mandatory vaccination policies could be a proportionate means of achieving the legitimate aim of protecting individuals and promoting herd immunity. For employers, this provides a useful insight that mandated vaccinations are not automatically a violation of human rights although it is yet to be seen whether the ECHR will distinguish this case to the new legislation put in place.

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