Following speculation in the press, the Government have announced a ‘no jab, no job’ requirement for staff working in English care homes with older residents. The take up of COVID-19 vaccinations amongst staff in care homes has not reached the levels expected by the Government and this new requirement is aimed at encouraging such staff to do so or risk losing their roles. It has caused speculation about whether this approach could be rolled out in other sectors and what this means from an employment perspective for employers and employees in the industry.
Workers in the English care industry are required to obtain both jabs within 16 weeks of the regulations being approved by parliament if they wish to retain their right to work on the front line in care homes where elderly residents are present. Ultimately, it is their choice whether to be vaccinated or not. However, if they choose not to be vaccinated (and are not medically exempt from being vaccinated), they can be removed by their employer from undertaking face to face front line care. Employers would have to consider in the first instance whether they could be redeployed in another role but if this is not possible, their employment may be terminated.
As ever, a fair process would be required and the employer would need to give consideration to the reasons for not being vaccinated in order to avoid any claim for unfair dismissal.
The Welsh, Scottish and Northern Irish Governments have indicated that they have no plans to make COVID-19 vaccinations mandatory for staff in care homes in their areas. There has also been concern that NHS visitors to care homes are not required to have been vaccinated yet care home staff are, despite such individuals frequenting a variety of settings to treat sick individuals and thus being more likely to spread the virus than care home staff. Consultation is underway about whether such a requirement should become mandatory in other settings and sectors but no decision has yet been taken on this.
Those who own English care homes will wish to ensure that a log and proof is taken of those who have had their COVID-19 jabs. Such information amounts to special category data and must be kept securely and only used for authorised purposes. Those who do not wish to provide such information should be warned of the potential effect of not providing it. Those who are not vaccinated should be asked if there is a reason behind their decision. In some circumstances there may be legitimate reasons for such refusal or an inability to have the vaccine. These could be linked to pregnancy or disability. Employers need to be extremely careful to take such matters into account and consider if there are alternatives or adjustments that can be made in such cases to avoid potential claims of discrimination.
Such provisions do not give carte blanche for employers in other industries to introduce such a policy. There are health and safety, as well as public policy reasons why elderly and vulnerable individuals may need protection. The same could not necessarily be said for those in other sectors. The position therefore remains that persuasion and encouragement remain the best approach to encourage take up of the vaccination.
Care home providers have often remarked on the difficulty that they have in obtaining suitable candidates in the industry. Their fear is that the requirement for mandatory vaccinations will drive away potential candidates out of the sector completely. Only time will tell whether their fears are founded. It is likely that we will have not heard the last of this with the potential for further sectors in the care industry being scrutinised for similar vaccination requirements in due course. It is expected that the requirement will be in place later this year.
If you would like to discuss the above in more detail or if you require any employment law advice, please do not hesitate to contact a member of the Employment Law Team.
Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.