No jab no job: a legal reality for care homes
On 13 July, the Government passed draft legislation making COVID-19 vaccines in care settings mandatory. The draft regulations were passed following a vote in the House of Commons, despite the Department of Health and Social Care’s (DHSC) failure to publish a vital impact assessment prior to the vote.
The Government’s decision to require vaccinations in care settings follows a detailed consultation which concluded at the end of May, with a growing number of countries adopting a similar approach for those working in health and social care including Italy, France and Australia. With almost 30,000 ‘excess’ care home deaths during the COVID-19 pandemic, the Government states that there is a clear public health rationale for the implementation of this policy. It aims to protect people who are most at risk from COVID-19 and its complications, by driving vaccination uptake in high-risk settings and ensuring high staff vaccination levels.
The new law
The new regulations will require all CQC-regulated care homes in England providing accommodation for individuals who need nursing and personal care, to allow entry to the premises, only to those who can evidence that they have received a complete course of an authorised COVID-19 vaccine, unless exempt (see below). This is a very broad requirement capturing all staff (temporary, permanent and agency) and also includes those who need to enter the care home to deliver services such as tradespeople, or deliver close personal care to the residents, such as physiotherapists or hairdressers. There is an annual review built into the legislation, requiring the Secretary of State to consider whether mandatory vaccines remain necessary and whether there would be other means of achieving the policy purpose.
The scope of the legislation has been significantly extended from the proposals set out in the initial Government consultation (the initial proposal only captured care homes who had at least one resident over the age of 65). The legislation also extends the requirement to be vaccinated to all persons who enter a home, regardless of their role and now includes third parties such as tradespeople.
It is expected that the Regulation will take effect from late October/ early November 2021. A failure to comply with the new regulations exposes care homes to the risk of being in breach of the duty to provide safe care and treatment and the risk of a significant financial penalty.
The list of exemptions is limited. Clinical exemption will be restricted to individuals who have an allergy or condition that serves as a reason not to administer the vaccine. Visiting family and friends, under 18s, emergency services and people undertaking urgent maintenance work in the care home are also exempt.
Actions care home providers should be taking now:
- Plan ahead – Although the mandatory vaccine requirement is not due to come into force until late autumn there are many changes that care homes will need to implement ahead of then so it’s vital to start this process as soon as possible.
- Update employment documents – Ensure job adverts, offer letters, contracts of employment and associated policies and procedures are amended to reflect the requirement that all staff must be vaccinated.
- Existing staff – Consider how you will deal with existing unvaccinated staff who remain unwilling to comply with the requirement to be vaccinated. It’s likely that you will need to enter into a period of consultation with each unvaccinated employee and to consider what, if any, alternative work may be available outside of a home.
- Consider data protection obligations – Care homes will be required to keep records of vaccination or medical exemption status and will need to ensure that these records are available for inspection by the CQC. Privacy statements for employees and others will also need to be updated.
- Contractors – Consider how you will ensure that third parties attending your premises to deliver services, maintenance or personal care are vaccinated; update policies and contracts as necessary.
- Future proofing – The Government is expected to launch a further consultation on whether it should make COVID-19 and the flu vaccine a condition of employment in both health and care settings so you may want to build this protection into the appropriate documentation now.
The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
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