Regulations to make Coronavirus vaccination compulsory for most care home staff are signed into law

Vaccination requirement will apply to most people working in CQC regulated care homes from 11 November 2021.

On 22 July, the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021(the Regulations) were signed into law. In this article, we consider the new rules and some of the implications for registered care home employers impacted by them.

For consideration of the wider question of whether other employers can require staff to be vaccinated, please see our previous article: Can employers insist that employees are vaccinated against covid-19? (available from our website).

Under the Regulations, it will be a requirement for all Care Quality Commission (CQC) registered care home providers to ensure that no-one enters the care home unless they fall into one of a number of categories. These include:

• they can provide satisfactory evidence to the registered provider that:
  • they have received the complete course of an authorised Coronavirus vaccine; or
  • they should not be vaccinated with any authorised vaccine for clinical reasons;
• they are a member of the emergency services or it is reasonably necessary for them to provide emergency assistance in the home;
• it is reasonably necessary for them to provide urgent maintenance assistance in the home;
• they are visiting a service user who is dying; or
• they are providing comfort or support to a bereaved service user.

The restriction will apply to those employed by the registered provider but also to others entering the home, such as contractors and visiting medical professionals.

Care home service users themselves, and their friends and relatives who are visiting service users in the care home will not be subject to the restriction. It will also not apply to people under 18 years of age. However, the new rules will impact on volunteers visiting the home unless they fall into one of the categories above.

The Government consultation

This follows the Government’s response to its recent consultation (link here) on whether vaccination should be a requirement for staff working in older age care homes.  The consultation response shows that care home providers were mostly in favour of the initial proposals but that service users and relatives of service users were mostly opposed. Individuals working in adult social care were divided with just under half supporting the policy. Overall, 57% of respondents were not in favour of the proposals.

Despite these mixed views, the Government forged ahead with the proposals, broadening out the requirement to include all CQC regulated care homes and not just those caring for older age residents.  

Medical exemptions to the vaccine requirement

Government guidance for the sector is expected soon. It is hoped that this will give care home providers more detail on the scope of “clinical reasons” for exemption and the process of implementation.

In its response to the consultation, the Government has suggested that medical exemptions will be fairly narrow, in line with current Public Health England guidance on clinical reasons not to have the vaccines (the “Green Book” link here).  

The Government has specifically ruled out exemptions on the ground of religious belief, commenting that such an exemption would be “difficult to implement and prove and would likely significantly reduce the impact of the policy in achieving its aims of increasing levels of protection for both residents and staff”.

What should care home employers do now?

Registered care home providers will already be considering the implications of this new requirement. The new CQC restriction is likely to require a change to contractual terms and so employers will need to commence consultation with trade unions (where relevant) and staff in good time before the rules come into force. Where staff are unlikely to have had the full course of vaccines or to be able to prove a clinical reason for not being vaccinated by 11 November, employers will need to consult with individuals and to consider carefully any redeployment options.

In some cases, there may be no alternative to dismissal, which may be by reason of “statutory restriction” or “some other substantial reason”. Employers should ensure they take contractual and statutory notice requirements into account and consult with individuals before notice of termination is given, keeping a paper-trail of the consultation process and any offers of alternative roles.

Recruitment where the vaccination requirement applies

The restriction will of course impact on recruitment to roles within care homes. Organisations should take advice on Equality Act rules on job adverts and pre-employment health-related questions before planning recruitment processes.

Broadly, advertising a role including a vaccine requirement could be indirectly discriminatory and so any such requirement in an advertisement should be justified as a proportionate means of achieving a legitimate aim. It will be important to ensure that advertisements do not put someone off from applying for the role where they may have a medical exemption.

Asking about vaccine status as part of a recruitment process will be a health-related question. Generally, employers should not ask about vaccine status before a job offer has been made, although the offer can be conditional on the employee providing satisfactory evidence that they can comply with the restriction (for example that they have had a full course of an authorised vaccine or have a clinical reason not to have the vaccine). Such questions can however be asked before a job offer is made if this is necessary to establish “whether the candidate will be able to carry out a function that is intrinsic to the work concerned”. This is likely to apply to roles within CQC regulated care homes.

Can employers process personal data about vaccine status?

The Regulations make clear that data protection obligations will continue to apply but state that registered care home providers may process evidence in relation to the restriction. Lawful bases for processing information about vaccine status, vaccine intentions and medical exemptions, which is special category personal data, are likely to be that the processing is “necessary to comply with a legal obligation to which the controller is subject”, and that processing is “necessary for the purposes of performing or exercising obligations or rights which are imposed or conferred by law on the employer or employee in connection with employment”. Consent is not likely to be an appropriate basis given that the information will be required to be collected as a CQC requirement.

Employers should consider whether their privacy notices require updating to include information about processing personal data relating to vaccination. 

Employment law remains the same

It is important to note that the new requirement is a change to CQC regulation requirements and not a change to employment rights or law. Organisations must consider the risks of unfair dismissal, discrimination and other employment-related claims when planning their strategy for implementation. Because of the complexity of this area, we strongly recommend that employers subject to the new requirement seek specialist legal advice at an early stage.