The issue of mandatory vaccinations has polarised the care home industry. Samantha Burges, associate solicitor, Ridouts Professional Services Plc, discusses the current position and what providers may need to consider should mandatory vaccinations be introduced.

On 14 April 2021 the Government announced it was launching a 5-week consultation on making COVID-19 vaccinations a condition for staff working in care homes with older residents.  This cements the Government’s move from its previous position that vaccinations were “not mandatory and it would be discriminatory to force somebody to take one” (Feb 2021) and that compulsory vaccination was “not the way we do things in this country” (Nov 2020). 

Currently there is no law making the vaccination of care home workers mandatory. The government continues to roll-out its phased vaccination programme across the country, the uptake of which has been fairly high albeit with some regional variations.  Figures from NHS England demonstrate 78.9% of older adult care home staff have received a vaccination. However, this does not take into account the variation between individual care homes and still falls below the minimum figures indicated by SAGE which advises 80% of staff and 90% of residents need to be vaccinated to provide a minimum level of protection against Covid-19 outbreaks. Only 53% of older adult homes in England are currently meeting this threshold, hence the government’s move to consider mandatory vaccination.

What does the consultation propose?

Legislation change and scope of policy

The consultation confirms the government’s intention to amend existing regulations to require older adult care home providers to deploy only those workers who have received the vaccination in line with government guidance (with the exception of those medically exempt). Therefore, responsibility will fall on the provider to ensure the requirement is complied with.

The government also intends to amend the Code of Practice on the prevention and control of infections to explain the proposed requirement and is considering extending it to include other people who visit the care home – the scope of this forms part of the consultation. This could include all paid staff (including part-time and agency workers), other health professionals, professionals who provide close personal care to residents (e.g. hairdressers), all professionals who enter a home (e.g. plumbers, electricians), designated ‘essential carers’, all friends and family who may visit and/or volunteers. Therefore, there is the potential for the requirement to be wide-ranging.  However, the government has clarified it does not intend to extend the requirement to include friends and family visiting residents and acknowledges there is a balance to be struck between the risk of virus transmission and the well-being benefits of visits from loved ones.

No matter the scope of the policy, if introduced providers will need to consider how they ensure relevant people have received vaccinations before being allowed to work at and/or enter the care home. An introduction of vaccine passports could assist matters, however providers may also want to consider producing a document that each relevant individual signs prior to entering the care home confirming they have received their vaccinations as required.  This will help providers evidence they are taking reasonable steps to comply with the regulations.

Definition of ‘older adult care home’

The definition of ‘older adult care homes’ is proposed to apply to ‘any care home which has at least one person over the age of 65 living in their home in England and is registered with the Care Quality Commission’.  This covers approximately 10,000 care homes.  This means some providers who may not consider themselves an older adult care home could be caught by the proposed new requirement by virtue of having just one older resident. They will need to comply with any new regulation just the same as any other home that falls within the definition.

Can a care home employer require staff to be vaccinated?

There is currently no direct statutory power employers can rely on to require staff to be vaccinated. This means that without any other mechanism being in place, employers cannot force employees to be vaccinated and employees are free to refuse vaccination should they wish to.

In order for an employer to require vaccination it would need to be covered in an employee’s employment contract.  In theory, this could be done easily for new employees.  For existing staff members, their employment contract would need to be varied by agreement. In either instance, there could be resistance from individuals who are concerned about the safety of the vaccination or those who object to receiving it on the basis of other grounds (e.g. medical exemption, moral or religious belief). Whatever the position, providers need to be careful not to discriminate against employees who choose not to or cannot have the vaccine.

However, if a mandatory vaccination requirement is introduced, providers will need to ensure all relevant staff are appropriately vaccinated to comply with the regulations. If staff refuse to be vaccinated and do not fall under any exemptions provided for in the legislation, employers will need to consider alternatives such as redeployment, suspension or termination of employment.

What are the potential pitfalls of mandatory vaccination?

Mandatory vaccination has been the subject of debate over the past few months.  Some providers have openly supported the government’s proposal, stating it will further help protect vulnerable residents and assist providers in complying with their regulatory obligations to ensure the safety of residents. However, others are not so sure or are strongly against it.

There is a clear risk that the care home workforce could be reduced. It is inevitable that some people may choose not to be vaccinated even if no exemptions apply. If the mandatory rule were to be imposed as intended this would mean they’d no longer be able to be deployed in an older adult care home setting and providers would need to address it appropriately. Providers have a statutory obligation to ensure they employ sufficient numbers of staff to maintain safety at their services and this could be destabilised.  Clear consideration will need to be given to how these individuals will be replaced. The thought of an already significantly understaffed sector losing further talent is hard to digest.

Uncertainty around statutory obligations could also put providers at risk of unknowingly breaching regulations, this is particularly apparent in relation to the changing guidance around exemptions from vaccination. For example, the government says data continues to be reviewed in relation to people with potential vulnerabilities (such as women who are pregnant), evidence will be reviewed as it becomes available and advice offered as appropriate. Staff members who have not received a vaccination due to medical exemption may need to be kept under continual review.

In addition, wider issues could arise such as problems with access to vaccinations. The government has reported success with its vaccination roll-out to date. However, it is not outside the realms of possibility that a situation could arise where a provider wants to employ an individual who hasn’t yet been vaccinated, wants to be vaccinated but is unable to access a vaccination. Such situations should be considered by providers during the first stages of recruitment to ensure any necessary steps are taken to avoid undue delays.

Conclusion

Given the success with the vaccination roll-out to date, including growing evidence that vaccination is contributing to the reduction in further deaths from Covid-19, it is likely the government will be introducing some form of mandatory vaccination requirement by the summer to protect some of the most vulnerable in society. Providers should reflect on how their services may be impacted and consider responding to the consultation to ensure their voice is heard.

If you require assistance or advice in relation to any of the matters raised in this article, our specialist solicitors can help. Please contact Ridouts Professional Services Plc using the email address [email protected] or by calling 0207 317 0340