Legislation has been approved in both the House of Commons and House of Lords dictating that staff in care homes must be vaccinated against COVID-19 by 11 November 2021, the date on which the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 comes into force.
The government launched a wide public consultation with responses received from thousands of care home providers, staff, residents and their families. Based on the various consultation contributions, it was concluded by the government that full vaccination against COVID-19 among those working in care homes will serve to aid efforts to reduce the likelihood of serious illness and death of care home residents.
Parliament has implemented a grace period of 16 weeks between the Regulations being made on 22 July 2021, and the legislation actually coming into force on 11 November 2021. This is to provide time for employers to encourage its unvaccinated staff to receive both doses of the COVID-19 vaccine in order to avoid unvaccinated employees from falling foul of the crucial 11 November date.
In addition, the Regulations include a mandatory review mechanism, stating that the Health Secretary should conduct a review of the effects of the Regulations and set out the conclusions of his or her review in a published report.
The Regulations will only be applicable in England.
The headline takeaway of the Regulations is that save for a medical exemption evidencing that vaccination is not recommended, any individual working inside a care home for residents that is registered with the Care Quality Commission (“CQC”) in England must have received the complete course of an approved COVID-19 vaccine.
The Regulations apply whether the individual is a volunteer, or employed by the care home, care home provider or agency. In addition, any third party professional working in the care home, for example as a healthcare worker, tradesperson, hairdresser, beautician, or CQC inspector will also need to observe the Regulations.
Rules on visitors and other limited exemptions
In specified circumstances, the Regulations provide that the following are exempted from mandatory vaccination and able to enter a care home:
• Emergency services providing assistance;
• Those providing urgent maintenance assistance in the premises;
• Friends and relatives of care home residents; and
• Children under the age of 18.
This will be a challenging period for employers on an emotive subject ahead of a critical deadline and as such, it would be good practice to start engaging with staff (if not commenced already) sooner rather than later. The number of workers that will be clinically exempt is likely to be small. Employers of unvaccinated staff in care homes will need to carefully consider how to manage individuals who do not have a medical exemption and refuse to have a complete course of the vaccine by the deadline. If dismissal is contemplated, employers must ensure that they follow a fair procedure, which in this case will certainly mean meeting with the employee to explain the consequences, understanding why they are not vaccinated and whether they intend to get vaccinated. Any dismissed employee should be provided with a right of appeal.
If you have any queries relating to the vaccination of employees or any other Employment Law or HR queries, please do not hesitate to contact our Employment team on 01228 552600 or 01524 548494.