The Government has consulted on and proposed that the law will be changed so that a provider of a Care Quality Commission (CQC) registered care home which provides accommodation for persons who require nursing or personal care, can only deploy staff who have received two doses of the COVID-19 vaccination.

This may be welcomed news for some providers who had already began mandating vaccinations whilst risking unfair dismissal and discrimination claims. However, for other providers, the outcome spells practical difficulties in ensuring that everyone who crosses the threshold of a care home has had both doses of the vaccine.

Gemma Nicholas, solicitor at Ridouts Law, explores the position now faced by providers with the proposed legislative change regarding vaccination of staff.

Consultation outcome

The consultation illustrated the battle between keeping those living and working in social care safe and the ethics of an individual’s right to choose. The former won and the government is planning on holding a further consultation on whether to make COVID-19 vaccinations compulsory in the wider social care sector including supported living and domiciliary care services.

The precise date of the law change is not yet clear as the Government will need to pass new legislation to bring the proposal into effect followed by a four month grace period. However, it is known that from October anyone working in a CQC registered care home will to be fully vaccinated. This applies to anyone coming to the care home in a work capacity, such as:

• healthcare workers;
• tradespeople;
• hairdressers and beauticians;
• CQC inspectors;
• all full-time or part-time workers employed directly by the care home or provider;
• those employed by any agency and deployed by the care home;
• volunteers deployed in the care home; and
• staff who do not provide direct care to residents such as cleaners and kitchen staff.

Exceptions exemptions

There will be exceptions for visiting family and friends, under 18s, emergency services, people undertaking urgent maintenance work and people who only work in the outdoor surrounding grounds of care home premises.

Only staff with a prescribed medical exemption are not required to be fully vaccinated. According to the consultation and outcome publication, a small number of people will fit into this category. Further details is yet to be outlined in guidance, but it is known at present that the guidance will reflect the Green Book on Immunisation against infectious disease (COVID-19; the green book, chapter 14a) and clinical advice from The Joint Committee of Vaccination and Immunisation (JCVI).

Staff who are pregnant, breastfeeding or trying to get pregnant are not exempt, unless they have a medical reason not to be vaccinated. Furthermore, the Department of Health and Social Care (DHSC) has confirmed that there will be no exemption for staff who object to vaccination on religious grounds.

Impact

There is the day to day practical impact of the proposed new law and the long term impact on an already strained sector. The day to day impact has been described as a “logistical nightmare” and “unworkable door policy”. Care homes will now be responsible for checking the vaccination status or exemption of every person crossing their threshold including agency staff. This is on top of ensuring that existing staff have their vaccinations in time to meet the end of the four month grace period. We are yet to see what the Government proposes to help ease this ‘logistical nightmare’, there have been suggestions of a mobile app for staff to show their vaccination status.

Another practical impact includes the administrative burden on providers to evidence their compliance. The change of law will be implemented through an amendment to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, and will be monitored and enforced by the CQC. Therefore, providers will need to evidence compliance to the CQC.  This has raised many questions in relation to the way in which the regulator will monitor compliance, whether the regulator will take a proportionate approach regarding the percentage of staff vaccinated, the consequences for failing to meet the requirement and the frequency of checks made by the CQC.

An obvious impact that has been considered throughout is the employment law aspect. As mentioned, before the proposed law was announced, providers faced the risk of discrimination and unfair dismissal claims when mandating vaccinations. Such risks are less with the proposed new law, but still apply and should not be ignored. Providers are still faced with the need to explore ways in which to tackle vaccination hesitancy. But most importantly now, providers need to think carefully about and be ready to manage vaccination refusals. There may also be the need to introduce new policies and procedures and thoughts around any changes required to commercial terms with trades people and employment businesses supplying agency workers.

Concerning the long term impact, it must be noted that over 60,000 people signed a petition against the plan by the Government to make the COVID-19 vaccine mandatory for care home workers. There are likely to be a high number of unvaccinated staff who would not be exempt and are unlikely to be persuaded to be vaccinated when it becomes mandatory. Also there are reports that many staff in the sector would rather quit than receive the vaccination. If high numbers of staff continue to refuse to be vaccinated, there is a real risk that significant numbers of staff will leave their jobs and the existing challenges with recruitment and retention in the sector will worsen.

This topic is obviously highly controversial and whilst providers will need to deal with the logistical aspects of the proposed change in law, providers are at the centre of determining the lives of the vulnerable residents they serve and the valued staff they employ. It is undoubtedly a very difficult position to be in.

I will explore this topic in a lot more detail in a 45 minute webinar hosted by Ridouts at 10 am on 29 July 2021. Please visit our website www.ridout-law.com to book your place.

Gemma Nicholas

Solicitor

DDI: 0207 317 0345

Mob: 07437835906

Email: [email protected]