From 11th November 2021, following new regulations, all regulated care homes in England must ensure that all staff, unless exempt, are fully vaccinated against Covid19.

The introduction of these regulations is likely to have a significant impact on care homes, their staff and any visiting professionals. These are the key points about the Regulations.

The scope of the requirement

The obligation under the regulations for full vaccination apply to any ‘registered person’. This includes all persons entering a care home, healthcare workers, social care workers and CQC inspectors. But also students, volunteers and delivery workers will also need to show proof of vaccination status or an exemption in order to enter the care home. Importantly however, the requirement to be fully vaccinated does not extend to the provision of care in private homes.

In terms of how the requirement will be governed, key staff members within care homes are encouraged from 11th November to carry out checks of vaccination status or exemption in order to ensure compliance with the Regulations. However, ultimately it is the registered person for the care home who remains legally responsible for their own compliance.

Importantly, verification of vaccination or exemption status is only required on the first occasion that an individual enters a care home. It is advised that this can be done by way of establishing either a single check point or multiple checks points at each entry to the establishment to ensure verification checks can be carried out before an individual enters the building.

Risks associated with retaining information of an employee’s vaccination status

Once the verification process has been completed, guidance suggests that a record of the date it was carried out and the individual’s status should be kept so that it can be referred back to if necessary. However, if an individual has a medical exemption, guidance suggests that the reason for the exemption should not be recorded in order to protect their confidential medical information and to comply with GDPR.

Any records kept need to be processed in accordance with the care home’s data protection obligations. Employers are therefore advised to review and update existing data protection policies and privacy documentation to ensure regulatory compliance. In doing this, care homes should focus particular attention on who can access the data, how much data is being processed and how the data is stored.

Dealing with unvaccinated staff

Firstly, employers are advised to give staff who cannot be fully vaccinated, a reasonable opportunity to either obtain full vaccination or evidence of any exemption before any formal action is initiated. In doing this, care home employers should give staff a timescale for compliance and detail the consequences of any failure, allowing for notice of termination to be served, if necessary.

Most importantly, employers need to make sure any process initiated against unvaccinated staff are non-discriminatory. In order to do this, employers need to consider potential reasonable adjustments for disabled employees when setting any deadlines or when arranging formal hearings. Employers may also consider offering paid or unpaid leave to unvaccinated workers, for example, where a worker intends to become fully vaccinated but has not reasonably been able to do so yet or where there has been a delay in obtaining evidence of a medical exemption.

Subsequently, if a registered person cannot prove their vaccination or exemption status, employers should first explore all available options and any support they can offer to the employee before any formal process is initiated. While workers cannot assume that they will be redeployed, consideration should be also given to any alternative roles where vaccination is not a requirement. Employers also need to ensure that where there are multiple staff members to be redeployed, that they use an objective and non-discriminatory selection criteria to determine redeployment.

Ultimately, employers cannot force a worker to have a vaccination and a workers refusal to do so is not a disciplinary/conduct issue. However, if a worker is unvaccinated on 11 November 2021 and they cannot be redeployed or their duties reallocated, the new regulations mean that employers will have no option but to dismiss them.  This means that if an employee has accrued their unfair dismissal rights, a fair dismissal procedure will need to be followed including steps such as inviting the worker to a meeting to discuss the matter, to avoid a finding of unfair dismissal against them.

Ultimately, employers need to keep in mind that the Regulations may provide for a fair reason for dismissal in certain circumstances. However if redeployment is possible and the care home does not redeploy the employee concerned, then they risk falling subject to a successful unfair dismissal claim. Therefore, all considerations need to be taken into account and specialist legal advice is recommended before any key decisions are made.

If any of the points raised in this update are relevant to you or your organisation and you require further legal advice, call the multi-awarded Employment team at Lupton Fawcett on 0330 191 043

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.

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