COVID-19 vaccinations are to become compulsory for care home workers, with the announcement expected to be made by the Government later this week.
It has also been suggested that the Government will launch a consultation on extending mandatory vaccinations throughout the entire health and care sector.
Prior research showed a sizeable gap between the minimum level of inoculation needed within the care sector and how many people are actually vaccinated against the virus – which, in London, was as low as 68 per cent of staff.
As such, workers will have 16 weeks to receive both doses of the vaccinations from the time regulations are approved and face losing their jobs if they fail to comply.
This issue has brought many questions to the surface – notably, whether it should be made compulsory, whether this will remain limited to the care sector alone and whether employees have the right to refuse this order.
Laura Kearsley, Partner and Solicitor specialising in employment law at Nelsons, warned this move may not be as straightforward as businesses believe:
It might not necessarily be as simple as they think. The reports indicate that care staff will be given 16 weeks to have the jab or face being moved away from frontline duties, or where that isn’t possible, losing their jobs. Those who cannot have the vaccine on medical grounds will be exempt.
Ms. Kearsley further noted that this could have a detrimental impact on retaining staff within the care sector:
The worry for the care sector is the impact this might have on recruitment and staff retention, given that there is already a shortage of staff in this sector. The detail of how this is to be implemented remains to be seen but this unprecedented move could prove unpopular with care staff who do not wish to have the vaccine.
In a poll of 1,000 care home workers conducted by the GMB, this indeed proved to be true – as over a third of carers stated they would quit their job if vaccinations became mandatory.
However, Suzanne Staunton, Partner at JMW Solicitors, stressed that this approach is unlikely to be repeated across other sectors without good reason:
The decision to make vaccinations compulsory for care home workers is a very bold move.
Employers should be extremely careful if they propose to impose a similar requirement across their workforce. In such cases, they will need to establish that it is reasonable, justifiable or proportionate and necessary to impose the compulsory requirement and that they have express consent from the employee to take the vaccine. However, very few employers, sectors, and industries will be able to show that it is reasonable, justifiable or proportionate and necessary to make vaccinations mandatory across a workforce.
It has been well-documented that a move to mandatory vaccinations as a condition of deployment could lead to a rise in employment claims on the basis of discriminating against staff due to protected characteristics such as disability or religion.
As such, it is expected that the Government will set out clear guidance for employers to follow to avoid a rise in litigation claims.
Monica Sharma is an English Literature graduate from the University of Warwick. As Editor for HRreview, her particular interests in HR include issues concerning diversity, employment law and wellbeing in the workplace. Alongside this, she has written for student publications in both England and Canada. Monica has also presented her academic work concerning the relationship between legal systems, sexual harassment and racism at a university conference at the University of Western Ontario, Canada.
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