Mandating COVID-19 vaccines for care staff

A key question facing businesses in the care sector is whether their patient facing staff can be required to take the COVID-19 vaccine. Although the current COVID-19 vaccination guidance for social care staff in the UK is instructive rather than mandatory, the National Care Association is currently seeking a legal opinion on whether care home workers can be required to accept the COVID-19 vaccine after many care home workers have refused it during the current vaccine rollout. Barchester Healthcare, which runs 200 care homes, has already announced that it will not hire new staff who have refused the COVID-19 vaccine on non-medical grounds. So, just how far can employers go with requiring their staff to take the vaccine? Some key considerations are below:

• Health and safety requirements – To comply with health and safety obligations employers should encourage employees to take the vaccine and may wish to consider a programme to educate staff about the vaccine to ensure employees are informed about the pros and cons.
• Protection of vulnerable services users – It's not just about the risk an individual is prepared to take in respect of their own health; choosing not to be vaccinated can directly impact other people’s health. Regarding transmissibility, the guidance for healthcare workers in the UK states that “it is highly likely that any infection in a vaccinated person will be less severe and that viral shedding will be shortened. We therefore expect that vaccinated health and care staff will be less likely to pass infection to their friends and family and to the vulnerable people that they care for”. If an employer is looking to take the step of mandating the vaccine, it should very tread carefully and document the reasons for asking individuals in certain roles to take the vaccine g. lowering the risk to other members of staff or vulnerable service users.
• Reasonable management instruction – If employers can establish that asking staff to take the COVID-19 vaccine for a particular role is a reasonable management instruction, they may also be able to justify taking action against staff who do not comply with this requirement of the role. Employers should always consider other alternatives, such as adjustments to duties or COVID testing of employees who are not vaccinated. Where employees are not involved in contact with vulnerable service users it will more difficult for employers justify mandating the vaccine in such roles.
• Data protection – Monitoring tools and databases to track whether employees have accepted their COVID-19 vaccine have been developed by software and IT systems providers with hundreds of companies already having installed this software. Employers should be aware that collecting vaccine uptake information will constitute special category data; the data must be held securely, for no longer than is reasonably necessary and data protection policies and Privacy Notices will require updating.

We share some additional considerations regarding vaccinations here. Employers should continue to remain flexible and always listen to an individual’s concerns about the vaccine before taking any action; there will also be unfair dismissal, discrimination, personal injury and human rights risks to consider. Should your business wish to discuss the legal implications of adopting a mandatory vaccine policy please contact us.