I was recently featured in the September edition of The Carer talking about the new CQC regulations requiring mandatory vaccination of care home workers. The article is reproduced below:
New legislation which mandates that care home employees must be fully vaccinated in order to work threatens to put further pressure on an already struggling industry. In this article Lee Jefcott and Andrea James, employment and healthcare regulatory experts at law firm Brabners, highlight how employers can prepare for the new legislation, and the legal claims which may arise as a result.
COVID-19 has taken many thousands of lives in the UK, particularly among older people and those with underlying health conditions, with a particularly devastating impact on care home residents.
To help protect care home residents, the Government has announced that, from 11 November, all frontline care home workers – and any worker entering a CQC-regulated care home in England – will be required to be fully vaccinated unless they are exempt for medical reasons. However, mandatory vaccination is a controversial topic, and many have protested against the legislation on the grounds that it violates personal freedoms.
The implementation of this policy is likely to lead to a surge in legal claims from employees that oppose the rules, so it’s vital that employers ensure that they are well prepared for these changes and understand the legal claims that may arise as a result.
What are the changes imposed by the new regulations?
As of 11th November, all CQC-regulated care homes in England will have to ensure that any worker looking to enter the premises is able to provide satisfactory evidence that they have been fully vaccinated, or are exempt.
This requirement is not applicable to residents, visiting friends and relatives, persons carrying out urgent maintenance work, emergency services or persons attending to a dying or bereaved resident. However, the requirement does apply to any other individuals who enter the home to work, such as therapists, doctors and hairdressers.
The requirement has been brought into law by The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021, which were enacted on 22 July. Mandatory vaccination now forms part of Regulation 12 (Safe Care & Treatment) and Regulation 17 (Good Governance). Both of these regulations form part of the CQC fundamental standards, meaning the standards below which care must never fall. This also means that CQC can use both its civil and criminal enforcement powers against providers in breach of the vaccination requirement, with powers including the ability to cancel a provider’s registration.
Preparing for change
There is a minimum eight-week period required in England between the first and second vaccination dose, so care workers will need to receive a first vaccination by 16th September 2021 at the very latest to ensure that they’re ready by the cut-off date. It’s likely that a sizeable proportion of workers will not have had their first vaccination in time, so employers may need to consider taking appropriate action such as granting employees a period of time off work until they have had both vaccinations.
The responsibility will also fall on employers to ensure that workers are aware of the changes and their implications. Managers are advised to hold meetings to discuss and address any issues that workers have, in order to maintain an honest, open dialogue about the new rules and their impact on working life, and to provide time to address any objections to the requirements. .
Furthermore, organisations should be proactive and ensure that their staff are trained to understand what they are required to do in order to ensure compliance with the regulations.
Vaccine hesitancy and the problem it poses
It is predicted that out of around 570,000 people working in care homes, 40,000 will refuse to have the vaccination, equating to just over 7% of all workers – and with the deadline looming, thousands of workers are yet to receive their first dose.
Of course, an employer cannot physically force a worker to have the vaccination, and a worker has the right to choose whether or not they have it, be it for personal reasons or as a health requirement. However, it will need to be made clear to employees that, unless they have a valid medical exemption, and if redeployment to an unregulated setting – such as the head office – is not an option, then their employment will be terminated. Care homes are not the only employers affected by these changes – any other organisations that regularly deal with entering care homes such as agencies and suppliers, for example pharmacies, will also be beholden to the requirement. All employers who could potentially be caught by the regulations should take steps to ensure that they are prepared.
This process may lead to legal claims of unfair dismissal and potentially even discrimination – but would such claims hold any weight?
Any employee that feels their employment has been terminated unjustly is eligible to bring a claim of unfair dismissal, provided generally that they have at least two years of service with the employer. In such a case the employer must be able to provide a valid reason for dismissal to prove that they acted fairly and reasonably in deciding to terminate employment. Continuing to employ an unvaccinated worker would be in direct contravention of the law, so dismissing an employee for refusing vaccination is likely to be seen by an Employment Tribunal as a fair reason for dismissal.
However, it’s worth noting that an Employment Tribunal would likely consider whether all other reasonable options, such as redeployment, were considered. For this reason it’s important that employers treat termination of employment as a last resort, and instead explore all alternative avenues before making the decision. Employers should also follow a fair dismissal process and offer a right of appeal against the decision to dismiss.
Dismissing an employee for refusing the vaccination may also give rise to discrimination claims. Some employees may have religious or other moral objections to the vaccine, while others may fall into groups where there is a noted high degree of vaccine hesitancy, such as pregnant women.
Ultimately there is likely to be a powerful justification argument that an employer could run to defend such claims, but these issues will undoubtedly be tested in Employment Tribunals in the future.
Whereas we cannot predict the exact outcome of such cases, employers should engage with staff at the earliest convenience to sound out any objections they may have and to respond to them.
Data Protection issues
Adding to the list of potential pitfalls for care providers, the regulations will also mandate that care home providers gather and keep information relating to vaccination status from both their own staff and other personnel. This information will constitute “special category data”, meaning that the employers must comply with the usual requirements of data protection and have a specific justification for collecting the information.. For example, they must make it clear why they are required to collect and keep the data, what it is used for, and how long it will be retained. Failure to do so would be a breach of data protection principles, so providers and care home managers must ensure that they remain vigilant when handling vaccine-related data.
After the devastating impact of the pandemic on care home residents, any regulation to help prevent such a thing from happening again is welcomed. However, the new regulations are uncharted territory, and will undoubtedly require a period of getting used to for both care providers and employees – and with CQC enforcement action looming against providers failing to abide by the rules, it’s important that the correct provisions are made ahead of the November 11th deadline.