Mandatory Covid vaccines in care homes Q&As

Since the announcement that the Government was to make Covid vaccination a legal requirement for workers in some care homes, employers are concerned about how it affects them and their staff. Nicola Mullineux, Content Manager at Croner-i, explores the typical Q&As regarding mandatory Covid vaccines in care homes.

When the Covid vaccine was first introduced at the end of 2020, the Government made the decision not to make the take-up of the vaccine mandatory. Some employers have made the decision to contractually require their workforce to have the vaccine whilst others are taking a position of encouragement by permitting paid time off to attend the appointment, etc. Some care home employers in England will have this decision taken out of their hands.

The Social Care Working Group of SAGE advised that an uptake rate of 80% in staff and 90% in residents in each individual care home setting would be needed to provide a minimum level of protection against outbreaks of Covid. This is for a single dose against the current dominating variant. These rates may be lower after a second dose, but the emergence of new variants may increase these levels, so estimates of the minimum coverage level can vary.

As of 4 April 2021, 78.9% of all eligible workers in all older adult care homes had received at least their first vaccination. However, this masks significant variation at a regional, local and individual care home level. As of 8 April 2021, 89 local authorities had a staff vaccination rate under 80%, including all 32 London boroughs, while 27 local authorities had a staff vaccination rate under 70%.

As a result, the Government believed there was a strong case for introducing a new requirement in order to make very high-risk environments as safe from the effects of Covid as possible. After a brief consultation exercise, the Government confirmed that some care home staff will be required to have the Covid vaccine as a condition of deployment.

The requirement has been set out in the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021.

The Government has launched a further public consultation on whether or not to make Covid and flu vaccination a condition of deployment in health and care settings such as domiciliary care and wider healthcare settings. Until then, the legal requirement applies only to care homes.

Which care homes are affected?

Deployment will be conditional upon having the vaccine in care homes:

  • in England

  • which are registered with the CQC

  • where residents require nursing or personal care.

The respective governments in Scotland and Wales have confirmed that care home staff in those nations will not be legally required to have the vaccine.

The Government originally planned the new law to apply to care homes in England with one resident over the age of 65. The scope has since been redesigned as per the above.

Who will be required to have the vaccine?

Guidance states that anyone who needs to enter the building to work in a care home which meets the definition above will need to have the vaccine, unless they have an exemption. This means the following will have to have the vaccine as a condition of deployment in an affected care home:

  • workers employed directly by the care home or care home provider

  • either full time or part time

  • those employed by an agency and deployed by the care home

  • volunteers deployed in the care home.

Those who are under the age of 18 are not affected by the requirement. However, they will come within scope when they turn 18.

The requirement will apply to everyone working in a care home providing accommodation for persons who require the regulated activity of nursing or personal care. The condition applies regardless of role, with the exception of those with medical exemptions.

Those coming into care homes to do other work, for example healthcare workers, tradespeople, hairdressers and beauticians, and CQC inspectors will also have to follow the new regulations, unless they have a medical exemption. Those working in the home on “urgent maintenance work” will be exempt.

The requirement will not apply to people who only work in the outdoor surrounding grounds of care home premises. There will also be exceptions for care home residents, those visiting family and friends in the home, under 18s and emergency services.

Although the legal requirement to have the vaccine applies only to care homes, the inclusion of other healthcare workers, tradespeople, hairdressers, etc will create an indirect legal requirement for those businesses too. For example, a maintenance company, or a beautician business, who has a contract with a local care home to provide its services within the care home, will need to require its existing staff and new staff to have the vaccine in order to continue to fulfil that contractual requirement.

When will workers have to be vaccinated by?

The law comes into force on 11 November 2021. By then, all persons within scope of the regulations will need to be fully vaccinated in order to work in a care home unless they are medically exempt.

Who is medically exempt from having the vaccine?

Guidance will be provided by the Government to clarify who is medically exempt. It will reflect the Green Book on Immunisation against infectious diseases (Covid-19: the green book, chapter 14a) and clinical advice from the Joint Committee on Vaccination and Immunisation (JCVI). It is likely to include those where vaccination is not clinically appropriate (eg a pre-existing diagnosis of anaphylaxis).

The Government has announced its plans to release a new NHS Covid Pass system which workers are expected to use to apply for formal medical exemption. This system is expected to go live imminently.

Until then, workers are able to provide a self-certificate for a temporary exemption from the Covid vaccine. This can be done by completing the self-certification form available on the Government website and giving this to their employers. Workers do not need to get medical proof for the temporary exemption to apply. However, the temporary exemption will expire 12 weeks after the launch of the new NHS Covid Pass system. Employers should accept any self-certificate forms from their staff without expecting any further medical information. But, you can ask general questions about the person’s health and what the organisation might be able to do to support them with this, in a similar way as you normally would with a welfare or return to work meeting when an employee self-certifies a sickness absence.

The Government intends to produce operational guidance to reflect the temporary exemption system. It also plans to release information relating to the steps that should be taken to mitigate the risk of Covid transmission to residents from workers who are exempt, who will be able to be deployed in the care home.

Who is included in temporary self-certification exemption?

While this list is not exhaustive, examples of medical exemptions from Covid vaccination could include individuals:

  • receiving end of life care where vaccination is not in the individual’s interests

  • with learning disabilities or autistic individuals, or with a combination of impairments which result in the same distress, who find vaccination and testing distressing because of their condition and cannot be achieved through reasonable adjustments such as provision of an accessible environment

  • with medical contraindications to the vaccines such as severe allergy to all Covid-19 vaccines or their constituents

  • who have had adverse reactions to the first dose (for example, myocarditis).

Time-limited exemptions will be available for those with short-term medical conditions (for example, people receiving hospital care or receiving medication which may interact with the vaccination).

Individuals who have received a Covid-19 vaccination abroad can also self-certify as medically exempt. This is because it is not clinically appropriate for them to be vaccinated in the UK if they have already received a partial or full course of vaccination overseas.

There will be no exemption for those who hold a religious belief and refuse the vaccine on those grounds.

However, a time-limited self-certification exemption is available for pregnant employees. They should complete the same self-certification form outlined above and give this to their employers if they do not want to get the Covid vaccine.

How can employees evidence their vaccination status?

The Government intends to launch a new NHS Covid Pass system imminently which workers should use to apply for a formal medical exemption.

NHSX is considering how the NHS Covid Pass could be used to support registered persons and staff to check and demonstrate vaccine status. In the interim, registered persons can choose to use the existing Covid Pass service to review an individual’s vaccination status. The current NHS Covid Pass services are the NHS App, the NHS website (NHS.uk) and the NHS Covid Pass letter.

The rules will allow a service provider to process information provided by a person wanting to prove their vaccination status, in accordance with the Data Protection Act 2018.

Can I refuse to recruit someone before 11 November 2021 because they can’t provide necessary evidence?

Employers taking on staff in advance of the 11 November deadline, for example in September and October, may want to make a recruitment decision based on vaccination status. Denying a job offer at that stage because evidence cannot be provided may result in the loss of otherwise good additions to the team where the individual is planning on being fully vaccinated in advance of, or shortly after, 11 November 2021. Job applicants should be made aware of the impending legal requirement and that anyone working in the care home, new recruits or otherwise, who cannot produce the necessary evidence will have to be redeployed or dismissed.

What happens if employees do not have the vaccine by the deadline?

Unless the employee is medically exempt (including temporary exemptions), anyone working in a care home will be under a legal requirement to have had both doses of the vaccine. Continuing to employ someone who contravenes the requirement is likely to be unlawful.

Employers will need to redeploy an employee outside of the care home who would otherwise be working in breach of the vaccine requirement. If redeployment is not possible, the employee will need to be dismissed.

What might my redeployment options be?

It is clear that redeployment — transferring the employee into another role — will need to be to a role outside of the care home. This rules out moving the employee from a direct care role to a role in the care home’s kitchen, for example.

Care home employers should not delay in exploring whether there are any roles that employees can be moved into and discuss this with employees at an early stage.

When considering redeployment, relevant factors to take into account include, for example, the employee’s skills, experience, qualifications and whether the employee could perform the role with some training.

It is for the employee to decide whether or not they wish to accept the alternative role. It is advisable to communicate the details of the alternative role in writing specifying sufficient detail of the position to allow the employee to make an informed decision. There is no requirement that the alternative employment must be the same status or pay as the employee’s previous role, (subject to any contractual provisions to the contrary in the employee’s current contract or the employer’s policies and procedures). The requirement is on the employer to consider alternative roles and avoid making any assumptions as to whether the employee would find such roles acceptable. A failure to fully consider and explore alternative employment is likely to make any subsequent dismissal for not providing evidence that the employee is fully vaccinated or medically exempt unfair.

If there is more than one employee that may be suitable for an alternative role, the role should be discussed with all employees who may be suitable and any employees who are interested in the role should be invited to apply for it or submit expressions of interest. If the employer receives more applications or expressions of interest than vacancies, a fair selection process will need to be implemented.

Care homes that also have a domiciliary care function should be aware that the Government plans to consult on introducing a legal requirement for workers in wider care settings, including domiciliary care, to be fully vaccinated. This means that any redeployment to a domiciliary care function may be temporary if the employee still does not get fully vaccinated.

What process do I use to dismiss unvaccinated employees who are not medically exempt?

Rules on fair dismissals will still apply in these circumstances. This means that an employment tribunal can still find that a non-medically exempt employee, dismissed for being in breach of the requirement to have the vaccine, was unfairly dismissed. This is likely to occur when the procedure used to dismiss the employee was defective.

The first step is to inform your employees about the legal requirement and that they have been identified as falling within its scope. It is important, even at this early stage, that employees are made aware that their failure to provide necessary evidence will result in their redeployment or their dismissal.

You should ask for evidence that the employee:

  • is fully vaccinated

  • has received the first dose and has the second dose booked

  • has the first dose and/or second booked

  • is medically exempt (including temporary exemptions).

You can set your own deadline for when employees need to provide evidence by, so that you can keep an element of control over the situation; however, employees effectively have until 11 November 2021 to provide that evidence.

If an employee does not provide evidence by your deadline, you should invite them to a formal meeting to find out why and discuss the result of continued failure to provide evidence, ie redeployment options or dismissal. Your subsequent actions will depend on the employee’s response but a further meeting will also be needed to confirm redeployment or dismissal after the employee has been given a further opportunity to provide evidence.

In some circumstances, it may be appropriate to confirm dismissal in advance of the introduction of the law with a notice period set to expire on 11 November 2021. Where this happens, there will be a need to continually monitor the situation and withdraw the notice of dismissal in the event that satisfactory evidence is provided.

Notice pay is normally payable when dismissing an employee in these circumstances even where employment expires after 11 November 2021 meaning the employee is unable to work for a period.

What happens at the end of the 12-week temporary exemption period?

Throughout the 12-week temporary exemption period, workers are expected to follow the process from the new NHS Covid Pass system to apply for formal medical exemption. If they are given this, they can continue working in the care home as usual, provided the are equipped with adequate protection measures such as PPE, masks, hand sanitisation, etc.

If the worker is not eligible for medical exemption, you can follow the same process outlined above to consider redeployment opportunities and fairly dismiss where appropriate.

So, I can’t dismiss those who are medically exempt?

Those who are medically exempt are not required to be fully vaccinated so there would be no apparent reason to dismiss them.

You will need to consider how to protect the employee from exposure to Covid-19 when continuing to undertake their role. This will also apply to those who are temporarily medically exempt.

What happens if I think an employee is providing false information about their temporary self-certification exemption?

Disciplinary action can be taken against workers who provide false information about their temporary self-certification exemption. However, it might be difficult to prove that the person did not reasonably believe that they would meet the conditions for medical exemption.

You will need to follow a full disciplinary procedure before taking any action against the employee. But, keep in mind that doing so might risk claims of unfair dismissal, constructive dismissal and/or discrimination claims. It’s important to pull together as much evidence and information as possible to show that the worker falsely self-certified their exemption. Dismissal might not be reasonable in these situations, so consider what other action you can fairly take, in line with your usual disciplinary procedure.

What happens if an employee has only received one dose of the vaccine by 11 November 2021?

Your request for employees to provide evidence of their current vaccine status should help to highlight those who intend to get the vaccine, have had the first dose but are not in a position to have the second until after 11 November 2021. In these circumstances, you should consider how the interim period after 11 November can be managed. For example, you could agree that the employee takes annual leave; you could enforce annual leave provided the correct period of notice is given; agree a period of unpaid leave, etc.

I am worried that I will have a staff shortage if I lose some staff because of this requirement. What can I do?

The Government is looking to deliver another National Recruitment Campaign in order to attract people into the sector and promote adult social care careers. It is also working with Skills for Care to ensure that resources such as guidance and best practice are available to support providers and local authorities with capacity and workforce planning, recruitment and well-being. Skills for Care will also provide local and national workforce support to local authorities and employers. The Government also plans to work with local authorities to ensure they are contingency planning and accessing additional support, as well as promoting joint working across a region to assist with targeted recruitment.

What is the Government doing to address vaccine hesitancy?

The Government recognises concerns that certain groups within the workforce may be more vaccine-hesitant and therefore could be negatively impacted by the vaccine requirement. It is providing tailored support to key groups in the workforce. This is designed to build confidence among:

  • women of childbearing age. It is working with clinical experts to address their questions and concerns about the vaccine, including concerns around pregnancy and fertility, for example these issues were addressed during a webinar for social care workers on 21 May 2021, hosted by Minister Zahawi

  • people from Black, Asian and Minority Ethnic groups who may be hesitant about taking the vaccine. It is delivering tailored communications and working in partnership with trusted community leaders

  • people with concerns about the vaccine, based on religion or belief, including, for example, by sharing information to tackle common concerns about vaccine ingredients or the safety of vaccines.

What should affected employers be doing now?

  • Care home employers may have already begun to collect evidence that their employees have had one or both doses of the vaccine. It is unclear yet whether further evidence will be required, via the digital and non-digital methods explained above, if the employee has already provided evidence by, for example, showing their vaccine card. Employers should be prepared for having to accommodate a separate checking system.

  • Make sure employees are informed about the Government’s confirmed plans to require them to have the vaccine and the potential outcomes if they do not have it by the deadline and are not medically exempt.

  • Re-enforce any exercise you have undertaken to raise awareness of the benefits of the vaccine.

  • Remind employees of your current policy on permitting time off work for vaccine appointments and if you do not already, consider offering paid time off for the appointment if you are experiencing some hesitancy.

  • Consider any potential avenues for redeployment for employees who choose not to have had the vaccine by the Government’s deadline.

  • Consider how you will continue to mitigate both exposure to and transmission of Covid for employees who are medically exempt.

  • Contact the maintenance company, or a local hairdressers, for example, that you have a contract with to provide services inside your care home, to ensure that they are aware of the requirement that any worker they send to carry out work will have to be vaccinated.

  • Prepare for undertaking dismissal procedures of those employees who would otherwise be breaching the requirement to have the vaccine.

  • Review your recruitment procedures to ensure that new starters have had the vaccine, or are medically exempt, once the requirement comes into place.