On 4 August, the government published operational guidance to help support the implementation of mandatory vaccination requirement in care homes based in England (which comes into force on 11 November 2021). The last date for care home workers to get their first dose to enable full vaccinated by the time the regulations come into force is 16 September 2021. A list of exemptions to mandatory vaccination can be read here.
The CQC is responsible for monitoring compliance with the regulations. Registered persons with CQC will need to ensure that everyone entering their care home is either fully vaccinated or exempt. There are three ways individuals can demonstrate their vaccination status (an NHS appointment card is not sufficient evidence):
- The NHS App;
- The NHS website – NHS.uk; or
- The NHS COVID Pass letter.
Care homes will need to keep vaccination records of staff and those entering the care home to demonstrate compliance with the regulations. The vaccination records (including medical exemptions) will be ‘special category data’ and will require compliance with data protection legislation. Although the guidance states there is no requirement to record the clinical reason behind the vaccination exemption.
Unhelpfully, it is unclear what clinical exemptions are available from the mandatory vaccination requirement. The operational guidance outlines that a medical exemption will reflect clinical advice from The Joint Committee on Vaccination and Immunisation and COVID-19: the green book, chapter 14a which states, “there are very few individuals who cannot receive the … COVID-19 vaccines” (page 22). Further guidance on the clinical exemptions available from vaccination is due to be published.
The operational guidance provides helpful tips on employment law issues with unvaccinated staff including:
- the regulations may provide a fair reason to dismiss an employee over 18 who is not vaccinated or medically exempt;
- consider redeployment or an alternative role where vaccination or medical exemption is not required;
- the regulations provide an ‘exception’ whereby it will not be unlawful discrimination in relation to age, disability, religion or belief for a care home to ensure that a person over 18 who has not been vaccinated and is not medically exempt does not enter the care home;
- compliance with the regulations is likely to be a proportionate means of achieving a legitimate aim in justifying indirect discrimination; and
- consider implementing a written vaccination policy, although any decisions made under it must not discriminate against workers.
Kate Melton comments
“Care home providers in England should already be preparing for the introduction of mandatory vaccination on 11 November 2021, the operational guidance provides useful detail on the implementation of the regulations. However, critical detail around medical exemptions is still missing. Dealing with unvaccinated staff is still likely to be fraught with employment law risks and care homes should always act reasonably and fairly when dealing with those staff.”
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