From 11 November 2021 new legislation comes into force under the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (SI 2021/891), which requires individuals working in Care Quality Commission (CQC) registered care homes to be fully vaccinated against Covid-19, unless they are exempt (see below).
Currently, the new regulation only applies to CQC registered care homes, however on 9 November 2021 the Government announced its plan to extend compulsory vaccination to all frontline NHS Staff. It is expected that a deadline will be given for the beginning of April 2022 to give unvaccinated NHS staff the opportunity to get the vaccine.
When will the new regulation come into effect?
Thursday 11 November 2021.
Which care homes are affected?
The new regulations apply to care homes in England that are registered with the CQC. This includes care homes and nursing homes that provide ‘nursing or personal care’.
What are the requirements?
From 11 November 2021, anyone working or applying to work in a CQC registered care home needs to be fully vaccinated against Covid-19. The requirement to be vaccinated does not apply to anyone who is exempt (see the list of exemptions below), e.g. a gardener, as long as they do not enter the building.
Who does the new regulation apply to?
The following individuals will need to be fully vaccinated against Covid-19 (subject to the exemptions listed below):
• Staff and agency workers
• Contractors or self-employed people hired to carry out work in the home, for example tradespeople, occupational therapists or hairdressers
• People not employed by the care home but who need to enter for work, for example doctors, nurses and CQC inspectors
• Work experience students
• Job applicants attending an interview
Who is exempt from the new regulation?
The following individuals will not be required to be fully vaccinated against Covid-19:
• Anyone with a medical exemption (click link for examples of reasons for a medical exemption)
• Current care home residents and service users
• Friends and family of a current resident
• Workers who do not enter the care home at all, for example a gardener
• Someone providing emergency assistance or urgent maintenance
• Members of the emergency services who need to enter the care home to carry out their job
• Anyone visiting a dying resident
• Anyone giving bereavement support to a resident after the death of a relative or friend
• Anyone under 18
How to provide/check for proof of vaccination or exemption status?
It is the duty of the care home’s ‘registered person’ to make sure these checks are taking place, and there are a number of ways to provide/check for proof, such as:
• NHS COVID Pass via the NHS App
• NHS App online
• A NHS COVID Pass letter
Until 24 December 2021 individuals who are exempt can self-certify that they are medically exempt if they work or volunteer in a care home. However, the employer can choose to accept the self-certification or require one of the different options of proof listed above. From 25 December 2021 a NHS COVID Pass will be needed as proof of exemption.
Will I be allowed in the care home if I am unvaccinated?
Those who are required to be vaccinated and are not vaccinated or subject to a valid exemption, will not be able to enter the relevant care home on or after 11 November 2021.
What to do if someone has concerns about getting vaccinated?
If an employee has concerns about getting the vaccine, the employer should have an open discussion about these concerns and try to answer their questions. Employers should try and encourage and support employees to get vaccinated so they’ll be able to enter the premises and continue working.
What happens if a care worker refuses to get the vaccine?
If a care worker refuses to be vaccinated and is not exempt, the employer should discuss it with the care worker, and try to resolve the situation informally. A discussion on the reason(s) why the employee is not or does not want to be vaccinated should take place, and the employer should try and offer any support they can. A possible solution might be to provide suitable alternative work outside the care home premises, if any is available (e.g. working in head office), or to give the employee time off to get vaccinated.
Can I be dismissed for refusing to have the covid-19 vaccine?
Yes, the new regulation means that, unless exempt, nobody is allowed to enter a CQC registered care home unless they are fully vaccinated against Covid-19. This means that carers who refuse to have the vaccine, without an exemption, may be dismissed.
What can I do if I think I have been unfairly dismissed?
If you think your dismissal was unfair, you should lodge an appeal against the decision in accordance with your employer’s appeal process.
Employees who have worked for an employer for 2 years have the right not to be unfairly dismissed. If you have been dismissed and you think the reason given for your dismissal was unfair (e.g. you have a valid exemption but have still been dismissed) or that your employer did not follow a fair process in dismissing you, then you have the right to bring a claim in the Employment Tribunal. There are strict time limits for bringing a claim for unfair dismissal, which must be made within 3 months less one day from the effective date of termination. Employees with less than 2 years’ service do not benefit from this protection, but do have benefit from other ‘day 1’ rights such as protection against discrimination because of a protected characteristic. If you believe you have been treated unfairly then it is important to seek legal advice at an early stage.
Is Compulsory vaccination discriminatory?
In general terms, it is possible that compulsory vaccination could result in discrimination against employees who have a protected characteristic, for example on the grounds of disability (where an individual has a condition that means it is not recommended for them to have a particular vaccine), or religion or belief (although for a belief to be protected, it has to meet strict criteria, and be more than simply an opinion or viewpoint).
With regards to the new regulation and the Covid-19 vaccine, it is for this reason that there are a number of exemptions that apply (as referred to above). However, this is a complex legal subject and requiring that employees have the covid-19 vaccine may still give rise to a claim for discrimination. Every situation is different, so if you believe you have been discriminated against it is vital to seek advice at an early stage. Generally speaking, a claim for discrimination must be brought within 3 months less one day from the discriminatory act you are complaining of.
Co-author of this blog is Xania Scarlett – A Legal Assistant in the Employment team.