From 11 November 2021, anyone entering a registered care home in England will have to be double vaccinated. The DHSC’s operational guidance clarifies that, in addition to care home staff, students, volunteers, central office staff or job interview attendees, new recruits and delivery workers will need to show proof of vaccination status or exemption to enter the care home.
To enable workers impacted by the requirement to receive both doses a 16-week grace period began on 22 July. The last date for an existing employee to receive their first dose of the vaccine is therefore 16 September 2021.
Although the current regulations will only apply to care homes, the government intend to extend these requirements to workers in the wider health and social care sector. At present, care providers have been left with a small window of time to effectively implement these regulations. Here we set out five key steps to consider before November.
1. Ensure staff have been notified about the new requirements
You should use the 16-week grace period to engage with staff and discuss the new rules, including the potential consequences of not meeting the vaccination or exemption requirement. Ensure that staff, including those on family or long term sick leave, are aware that they will be asked about their vaccination status and how this information will be handled.
Employees should be informed about any timescales for compliance and the steps that will be taken if they are not met. You should be clear of the risk of losing their job at the end of the grace period should they be unable to produce the necessary evidence. Any timescales should allow for any formal process and for notice of termination to be served, if appropriate.
Employers should engage individually with their staff to identify:
- Those who can comply with the requirement for vaccination or exemption and can provide evidence.
- Those who are not yet fully vaccinated but will arrange to do so before 11 November 2021.
- Those who are not yet fully vaccinated and are unlikely to be fully vaccinated before 11 November 2021.
- Those who do not wish to be vaccinated and are not exempt.
- Those who will be under the age of 18 on 11 November 2021 but who will have to comply with the requirement when they turn 18.
2. Ensure you understand the exemptions
You must ensure that those involved in reviewing evidence and recruitment understand the exemptions and how they may apply.
The following are currently exempt from the requirement:
- Workers who should not be vaccinated for clinical reasons (this will reflect the Green Book on Immunisation against infectious disease.)
- Those providing emergency assistance.
- Those providing urgent maintenance in the care home.
- Members of the emergency services attending the care home in the execution of their duties.
- Those under the age of 18.
- Those providing spiritual support for a resident following a bereavement.
Currently there is no proposed exemption for those who refuse vaccination on ideological or religious grounds.
3. Implement efficient policies and procedures
Mandating vaccinations in the workplace will concern some staff and you need to ensure that the correct procedures are in place to deal with such issues. You should review any grievance and disciplinary policies to ensure they are fit for purpose.
Also consider the implementation of a vaccination policy which encourages uptake, but which also notes that there are circumstances in which it will not be appropriate. It may also include some of the following:
- The purpose and benefits of vaccination.
- Details of staff deadlines for providing evidence of vaccination or exemptions.
- Any leave arrangements for staff experiencing side effects from vaccination
- How other policies will apply to staff who cannot comply.
- The position regarding booster doses. (Booster doses of vaccine are not currently included in the regulations but may be added in future).
You should also consider potential staffing shortages and the impact on recruitment and retention of staff. Recruitment documentation needs to be updated to ensure that the vaccination requirement is clear from the outset to any potential applicants. You should ensure any offers of employment are conditional on satisfactory evidence being produced.
4. Follow a fair process for staff who cannot comply
Employees that cannot comply with the new requirements should be given a reasonable opportunity to obtain vaccination or evidence of exemption before formal action is taken.
Dismissal based on non-vaccination may be challenged as unfair by employees with more than two years’ service if there were other steps the employer reasonably could have taken to avoid dismissal, or if the process was unfair.
Following a fair process is likely to include providing support, encouragement and information about the vaccine. You should consider all available alternatives to dismissal such as homeworking or redeployment to other roles where vaccination is not compulsory.
You will also need to consider appropriate steps to take where employees have only had one vaccine on the cut-off date and cannot yet have their second dose. In such cases, you may consider placing staff on unpaid leave until they are double vaccinated. Any such agreement should be carefully documented.
5. Data Protection
Verification of vaccination or exemption status is only required on the first occasion the individual enters the care home. A record should be kept of the vaccination or exemption status of all staff members and the date this was last checked. A similar record should be kept for all those entering the care home.
Data relating to health, such as vaccination status, will be special category personal data and as such it requires a higher level of protection. You will need to implement an efficient storing system for the information you obtain from staff and ensure records are kept and processed in accordance with your data protection obligations. Existing data protection and privacy documentation must be reviewed and updated to ensure compliance with the regulations.
This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.
All content on this page is correct as of August 25, 2021.