COVID-19 EXPERT LEGAL INSIGHTS

Mandatory Covid-19 Vaccinations for Care Home Workers

18 June 2021

This week, the Government announced that Covid-19 vaccinations will be made compulsory for care home staff, raising strong emotions on both sides of the argument.
 

The new legislation will mean that, from October, anyone working or volunteering in a Care Quality Commission (CQC)-registered care home in England must have two doses of a COVID-19 vaccine.

The law, which is subject to parliamentary approval and a 16-week grace period, will apply to all workers directly employed by the care home or provider and those employed by an agency, as well as volunteers. It will also apply to those coming into care homes for ancillary services, such as tradespeople, hairdressers and beauticians. The rule will not apply to those who have a medical exemption. Anyone who is not vaccinated will face being redeployed away from front-line care or potentially losing their job.

The law will be implemented through an amendment to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. It will be the responsibility of the care home managers to check evidence that their workers are vaccinated or medically exempt. Responsibility for monitoring compliance will lie with the CQC and they will be advised to take a risk-based and proportionate approach to enforcement.

This push for mandatory vaccination follows concerns about the uptake of the vaccine by those working in the care sector, with NHS records showing that more than 50,000 of the 1.5 million people working in health and social care are still unvaccinated.

According to the latest data 84% of staff in older care homes in England have had one jab, while almost 69% have had two.

However, this masks significant regional variations. In Hackney for example, only 66.7% of staff in older care homes have received their first jabs, while 58.6 have had two.

Compulsory vaccinations will save lives

Any debate about mandatory vaccination inevitably elicits strong reactions and must be handled with careful sensitivity so as not to undermine public support for the vaccination programme.

It is now widely thought that the arguments in favour of protecting care home residents from potentially infectious staff are stronger than giving people the right to choose whether they want to be vaccinated.

With more than 40,000 residents in care homes having died of COVID since the pandemic began, alongside almost 150 care workers, it is incontrovertible that those living and working in care homes are extremely vulnerable and deserve the utmost protection.

Mandatory vaccination is also critical for preventing the onward spread of the virus via the friends and family of residents who are visiting.

Staffing issues are the biggest concern

However, there are also a number of reasons why an employee might not be able, or wish to, have the vaccine, such as disability/medical reasons, pregnancy, or religious and cultural beliefs. 

Vaccine hesitancy is highest among young females and certain ethnic minorities, precisely the demographic who are more likely to seek work in this sector. Given care homes are already chronically understaffed, mandatory vaccination is therefore not only likely to deter potential new recruits, but also drive out those who are already working there.

While unvaccinated staff could be redeployed away from front line work, in practice this is very difficult, especially in smaller homes, and will put a significant strain on day-to-day operations.

The issue of an individual’s right to choose is central to this debate. Some may feel strongly that the legislation removes the opportunity for genuine consent, and it is possible, depending on how the new law is enacted and enforced, that the government and public health authorities may be open to a judicial review claim.   

The policy will also give rise to concerns about discrimination . A belief that vaccines could be harmful or counter-productive may well qualify for protection from discrimination as a religion or belief. Provided they act reasonably, employers will be able to defend any claims by saying the policy is a proportionate means of achieving a legitimate aim – protecting the lives of vulnerable people in care homes is surely a legitimate aim and applying the law will likely be a proportionate means of achieving it. However, any discriminatory impact the law has will be a mark against the government if there is a judicial review.

Although it should be noted that the Equality and Human Rights Commission has concluded that it is ‘reasonable’ to legally require care home staff to be vaccinated, while implementing safeguards to minimise the risk of discrimination.

What is clear is that while the debate over mandatory vaccination will inevitably continue, it is vital that all those affected must be given the advice and support they need to ensure their concerns are effectively addressed.

While the Government has now decided to follow the path of compulsion, peer-to-peer persuasion regarding the jab is likely to be equally important in ensuring the long-term safety of everyone living and working in care homes.

If you would like to understand further the implications of this proposed legislative changes, please get in touch.

About the Authors

Shannett Thompson is a Partner in the Regulatory Team having trained in the NHS and commenced her career exclusively defending doctors. She provides regulatory advice predominantly in the health and social care and education sectors. Shannett has vast experience advising  regulated individuals,  businesses such as clinics and care homes and students in respect of disciplinary investigations.

Sophie Kemp is an experienced public lawyer, advising on major public inquiriesjudicial review, and modern slavery and human rights.  Sophie acts for individuals, charities, companies and regulatory bodies in judicial review litigation. She has considerable investigative and public inquiry experience representing individuals, institutions, charities, public figures and senior professionals in major public inquiries, inquests, IOPC investigations, and before Select Committees. 

Mark McWilliams is a Senior Associate in the Employment team who acts for employers and employees. Mark advises individuals who have been dismissed or discriminated against or employers who are dealing with difficult and complicated employment disputes.

 

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