Compulsory COVID-19 vaccinations for care home workers in England from 11 November 2021

On 22 July 2021, the government passed the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (“the Regulations”). The Regulations require that from 11 November 2021, those working in Care Quality Commission (CQC) registered care homes in England will need to be fully vaccinated against COVID-19 to enter a care home in England.

The Regulations apply to any CQC registered care home providing nursing and/or personal care, whether the individuals are full-time, part-time, volunteers, employed by an agency, or otherwise.

The Regulations contain a few exceptions. In particular, an individual does not need to be vaccinated if they:

• have a medical exemption;
• are a resident of the home;
• are a friend/relative of the resident;
• are providing emergency assistance to the home e.g. ambulances, emergency plumbers, etc.;
• are under the age of 18; or
• are providing bereavement support reasonably necessary for a resident following the death of a friend or a relative.

What does this mean for you or your business?

The first thing to note is that the Regulations come into force on 11 November 2021. This date was specifically entered into the Regulations as it provides a 16 week “grace period” from the date the Regulations were made in parliament. It was considered by the government that the grace period would allow time for care workers to be fully vaccinated and for employers to iron out any issues with staff who, for whatever reason, have chosen to refuse the vaccine.

Whilst the vast majority of individuals have accepted vaccinations, there are a vocal minority who have sternly rejected the opportunity to be vaccinated. Since the implementation of the Regulations in July, we have already received enquiries from care homes on how to manage such individuals. Below, we consider the issue of continued employment and other problems which may arise, as a result of the mandatory vaccination requirement.

Immediate actions

Care home employers should be producing materials and/or correspondence alerting all current employees/workers as to the upcoming deadline of 11 November 2021 and the legal requirement to be fully vaccinated by this date. Individuals should be invited to discuss the matter with the HR department and/or their line manager.

ACAS has produced guidance for care homes in holding such conversations, a link to which is provided below. In particular, ACAS suggest “If someone does not want to be vaccinated, the employer should listen to their concerns. Some people may have health reasons, for example they could get an allergic reaction to the vaccine. Employers should be sensitive towards personal situations and must keep any concerns confidential. They must be careful to avoid discrimination.”

Where individuals refuse to be vaccinated

Where individuals refuse to be vaccinated, and do not meet one of the exemptions listed above, employers will likely have a potentially fair reason to dismiss the individual in question, notably as their continued employment would contravene a restriction imposed by statute (the requirement to be fully vaccinated under the Regulations).

Employers will still need to follow a fair process as they usually would in a disciplinary scenario and consideration should be given to any alternative roles prior to dismissal. For example, could the individual’s role be carried out from home? Whilst this is unlikely for care staff, back office workers may be able to complete their job role outside of the care home. 

Several meetings should be held with individuals who refuse the vaccine and it should be clear that should they not achieve fully vaccinated status by 11 November 2021 (or any reasonable extension of time provided for by the employer), then the outcome may be dismissal.

Employers should always be considerate of potential discrimination issues, and any pre-existing medical complaints which may restrict individuals from being vaccinated. In addition, whilst religious grounds are not one of the listed exemptions in the Regulations, employers should not reject such an assertion out of hand and should instead guide individuals to materials on the topic.

Can we dismiss an individual before 11 November 2021?

In many cases it will be clear that an individual has no intention of being vaccinated before 11 November 2021. In these circumstances, employers may be tempted to dismiss upon notification of the news, especially where the 8 week requirement between the two jabs is likely to run over the November deadline.

We believe that it may be premature and risky to dismiss an individual prior to this date on grounds of their refusal to have the vaccine, as there is currently no legislative backing to cement the decision to dismiss. After 11 November 2021, such a decision to dismiss is more likely to be considered fair, as the care home would simply be complying with its legal obligations.  

Furthermore, the Regulations require non-exempt individuals to be vaccinated with a ‘complete course’ by 11 November 2021. This means that both doses of the vaccine will need to be administered by the deadline (unless the individual was vaccinated with the single-dose ‘Janssen’ vaccine).

Commercial considerations

The Regulations are phrased in the negative i.e. you cannot enter a care home unless you are vaccinated or fall within an exemption. As such, the Regulations are broad, sweeping and apply to individuals beyond care home workers, such as certain non-emergency tradespeople e.g. routine plumbing checks; those individuals will also need to be fully vaccinated. It may be prudent to consider this when negotiating service provision clauses e.g. for maintenance contracts. The commercial team at BPE can assist with advising on such contracts.

Anything else?

As the government estimates that up to 7% of care home workers (40,000 individuals) may leave the care sector in refusing to comply with the upcoming Regulations, it may be worth considering recruitment and training strategies in anticipation of this, sooner rather than later. The average cost of recruiting and training an individual in the care sector is estimated to be £2,500 and it will be prudent to anticipate and address issues of staffing early on, for an already understaffed sector. The government hopes that the end of furlough and redundancies in retail and hospitality may cover the anticipated exits in the care sector, although this remains to be seen.

If you have any concerns about the Regulations which are due to come into force on 11 November 2021 or regarding mandatory vaccination policies generally, please contact BPE’s employment team to support you through your concerns.

Recommended reading

A copy of ACAS guidance on mandatory vaccines in care homes can be found here.

A copy of the upcoming regulation is available here.

Our colleague Will Carter, previously wrote an article on the risks of mandating vaccinations (which will continue to be relevant, prior to the enforcement of the new Regulations).

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.