From 11th November 2021, anyone who works inside a Care Quality Commission (CQC) registered care home, which provide accommodation and nursing or personal care, in England must be fully vaccinated against COVID-19, unless they are medically exempt. This step that has been implemented with the best of intentions, to protect elderly and vulnerable people across the UK. However, marks a significant shift in how, arguably, an employer can in practice qualify an employee’s right to a private life under Article 8 of the European Convention of Human Rights, certainly in the care sector.
Mandating vaccines is largely incompatible with the existing legal infrastructure, particularly around discrimination, creating a myriad of potential missteps for employers. Social care providers are likely to bear the brunt as they’re at the centre of the change, and it couldn’t come at a worse time. Social care is in the midst of a critical staffing crisis that has been worsened by the pandemic and Brexit-associated immigration policy. The National Care Association, a body that represents independent care providers, currently estimates that care homes have a collective 170,000 positions vacant – equivalent to more than 10 per cent of all posts. With these new rules this will only be exacerbated.
Mandatory vaccines will cause issues within the care sector but will affect workers outside the sector too. They will apply to almost everyone that enters a care home for work. This includes agency workers, contractors and self-employed people who are hired to carry out work in a care home, including tradespeople, occupational therapists or hairdressers. It also covers people who are not employed or contracted by the care home but still need to enter for work, such as CQC inspectors, volunteers, work experience students and even job applicants attending an interview. Interestingly, it does not include any visitors of care home residents.
The scope of this mandatory vaccine policy creates a minefield of potential legal problems. Will there be new protections for social care businesses, to shield them from a barrage of cases against them from current and prospective employees that are refused work, due to their vaccination status? How do they navigate in-person interviews or trial days for new staff – can they now ask for proof of vaccination? What happens to current staff who refuse to disclose their vaccination status? There are countless questions that we are unlikely to have answers to until we see the first cases arrive in court.
When it comes to contractors there are even more questions. How do they go about legally verifying the vaccination status of all their staff? Will policies like Pimlico Plumbing’s proposed ‘No Jab No Job’ policy become the norm? The policy has been highly scrutinised in legal circles, as well as in the media, and we are yet to arrive at a legal consensus on whether the business is allowed to bring it into effect.
Each business must be considered on its own particular facts and circumstances and decided on a case-by-case basis. This is just one example, but when you take into account the number of organisations and businesses that work with the social care sector in some capacity it creates a much wider dilemma. It can apply to delivery drivers, postmen, bus drivers, nurses, electricians and more. So how does a care provider go about legally verifying all these third-party workers?
These are questions that there is no clear answer to right now. However, there are steps that all employers that work in any way with the social care sector should take ahead of the 11th of November deadline.
Communicate
Throughout the pandemic communication has been key and it is essential that this remains a priority now. Regardless of where you fit in the care home ecosystem, whether you’re a care home or business that works in the sector, communicate with your staff how things will change on the 11th so everyone is prepared.
Clarify exemptions
Mandatory vaccination does not apply if a person is medically exempt. If you work in a care home you probably already understand whether your staff members are exempt, but you may not know this information for volunteers or external partners, so these conversations need to be prioritised ahead of the 11th.
If you’re a non-care home business, make sure you know which staff members are exempt so you can be quick to respond when your care home customers ask.
Compile a list of partners
There may be some businesses that visit a care home each week, but there will be others that only visit a care home once in a while. However, frequency of visit has no impact on vaccination status, whether a partner visits every week or once a year they will need to be vaccinated. So, compile a list of partners and care homes your work with to understand which relationships this change may impact.
Consult a legal expert
The government guidance continues to change and can be challenging to keep up with. If you have any concerns about how to approach staff members or partners about their vaccination status speak to a legal expert first. They will be able to clarify the most appropriate approach and guide you on some of the consequential points associated with mandatory vaccinations, such as recording vaccination status and data protection considerations, to prevent you facing legal action from employees or partners down the line.
Final thoughts
The UK’s vaccine mandate is not unique. Governments across the world are turning to vaccine mandates outside of healthcare too. In New Zealand, we have seen similar rules being applied to teachers and in Italy, all workers must show proof of vaccination, immunity or a negative test in the past 48 hours to go to work. Otherwise, their pay can be stopped after just five days.
With the greater global context in mind and with the current rate of infection in the UK, we could see vaccination rules apply much more widely. Those responsible for setting employment policy in every business should have this in mind, as the roll-out of this policy in care homes could apply to their sector in the future.
Kimberley is a partner and employment lawyer at Napthens. She has significant experience acting for a range of clients including corporate entities, Local Authorities and educational establishments. Kimberley works with employers on a wide range of legal issues including business disposals and acquisitions, restructures, individual and collective redundancy matters, day-to-day employment law issues and advice regarding post termination matters, as well as designing and delivering bespoke training sessions on an array of HR and employment issues.
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