As the reluctance of some adult care sector staff to have the vaccine remains high, the Department of Health and Social Care is now consulting on making vaccination a condition of deployment in older adult care homes and states that the Government “intends to change the law quickly”.
The proposed change is that all staff deployed in a care home supporting at least one older adult over the age of 65 should be vaccinated. This includes all workers employed directly by the care home or care home provider (on a full-time or part-time basis), those employed by an agency and deployed by the care home, and volunteers deployed in the care home, providing direct care and those working in care homes doing other roles, such as cleaners and kitchen staff.
Consideration is also being given on extending this requirement to include people who come to the home to provide professional services (for example visiting faith leaders and hairdressers) or other care and support (for example, those friends or family who have agreed with the care home that they will visit regularly and provide personal care, but not those who simply visit).
To date, reasons given by those not wanting the vaccination have included concerns about the interaction with disabilities and medical conditions, whether to have it when pregnant, religious or philosophical beliefs, but the exemptions posed in the consultation are limited to two categories:
- those with an allergy or condition that the Green Book on Immunisation against infectious disease (COVID-19: the green book, chapter 14a) lists as a reason not to administer a vaccine, for example prior allergic reaction to a component of the vaccine, or where the Joint Committee of Vaccination and Immunisation (JCVI) advises seeking medical advice, before proceeding with vaccination, where a professional medical opinion should be sought on whether the individual should be exempt.
- If supply issues make it impossible for a member of staff to access a vaccination within a reasonable travelling distance, the requirement will not apply to that individual until the supply issue is resolved.
It is said that no concerning safety signals have been identified so far in relation to the vaccination of women who are pregnant and that the JCVI is continuing to review data on the risks and benefit of vaccination for women without significant underlying health conditions who are pregnant.
From a practical perspective, the Government is seeking views on the form of evidence to be used to show that staff have been vaccinated, any grace period for new and existing staff and record keeping requirements. The intention is that at the time of registration and when inspected, care home managers would have to provide evidence that their workers are up to date with vaccination of an MHRA-approved COVID-19 vaccine. This will have data protection as well as employment implications. The consultation runs until 21 May 2021 and you can access it here.
The focus on reducing the risk posed in care homes as much as possible and the continued reluctance of some care home staff to have the vaccine has meant that that making the vaccine mandatory is inevitable. Indeed, the vaccine is already mandatory for healthcare workers in Italy and other European countries appear likely to follow suit. Whilst social care providers have for the most part tried to avoid making employment conditional on having the COVID-19 vaccine, many will welcome the Government making the vaccine mandatory, to reduce the employment law risk they face in doing so. Care providers are starting to face questions from residents and their families expecting the staff looking after their loved ones to have the vaccine. The question will be, whether care sector staff faced with a mandatory vaccination they don’t want to have, take the pragmatic view that there is little point refusing and potentially facing dismissal when they will face the same requirement whomever they work for in the care sector? Or take their chances in the Tribunal?
About the author(s)
Vivienne advises on the whole employment life cycle, from recruitment to talent retention, managing health issues at work, reasonable adjustments, complex grievances, change programmes and equalities learning. She brings experience from having successfully represented clients in complex multi-party tribunal claims over the last ten years (most frequently including complex whistle-blowing and discrimination claims) to her advisory work, to capture and improve best practice.
Martin Chitty helps clients to understand the balance between where they want to be as an employer, how to get there, how much it might cost and how quickly it can be done. Part of this is about understanding employment law issues, but far more is about taking those issues, forming them in to a pragmatic solution, and getting the job done.
Amber has experience of advising corporate and private clients at all stages of a commercial dispute from pre-action through to trial and subsequent costs disputes. She understands that in order to consider the merits of a case and the best course of action to take to resolve the issues, clients want to think about minimising costs incurred and reputational damage caused by the those actions.
