11th November deadline for care home staff to be vaccinated

The Health and Social Care Act 2008 (Regulated Activities)(Amendment)(Coronavirus) Regulations 2021 (the ‘Regulations’) were made on 22 June 2021. They require individuals working or volunteering in care homes, including local authority owned care homes, to be fully vaccinated unless they are exempt. The Regulations come into force on 11 November 2021.

The Regulations provide for 16 week “grace period” to enable individuals to receive two doses of a Covid-19 vaccination. This means the last date for such workers to get their first vaccine dose, so they are fully vaccinated by the time the regulations come into force, is 16 September 2021.

 What to employers need to do? 

Employers need to ensure that:

  • Staff and volunteers are informed

Staff and volunteers need to be told about the legal requirement for them to be vaccinated by 11th November 2021. They may have concerns about this, particularly if they are exempt or are reluctant to have the vaccine. This grace period gives employers the opportunity to discuss and where possible address these concerns to encourage voluntary vaccination.

  • They understand which staff or volunteers are exempt 

Employers will need to understand which staff and volunteers are exempt from the requirement to be vaccinated and the basis for that exemption. Taking action against a staff member or volunteer who has not had the vaccination but is exempt could result in unfair dismissal and/or discrimination claims. Employers may also want to consider whether any changes are required to their health and safety risk assessment and to the deployment of exempt staff within the care home.

  • Identify staff or volunteers who are reluctant or who refuse to have the vaccine 

Employers will need to consider how they manage individuals who are not exempt but refuse to have the vaccine by the end of the grace period. Acas has issued guidance to assist employers in supporting their staff to get the vaccine. It may be necessary however in some circumstances where staff refuse to have the vaccine, for the employer to start a disciplinary process which could ultimately result in the employee’s dismissal.

Can an employer fairly dismiss an employee who refuses to have the vaccine? 

Under section 98(2)(d) of the Employment Rights Act 1996, a dismissal is potentially fair if an employee cannot continue to work in the position they hold without either the employer or the employee contravening “a duty or restriction imposed by or under an enactment”.

On 11 November 2021, it will become a statutory requirement for employees in the regulated care home sector to be vaccinated, as a result, it should be possible for an employer to show that an employee’s continued employment, where they have refused to have the vaccine and are not exempt, would contravene a statutory restriction.

It would be advisable for employers to ensure that they have provided support to the employee to get their vaccination and seek to address, where possible, any concerns the employee has before moving to a dismissal.

What are the data protection considerations? 

Employers should be aware that information about an employee’s vaccine status is special category data which requires additional considerations under data protection law. Employers will, as a result of this legislation, have a legal obligation to check and record the vaccine status of staff and volunteers in care homes. This information could result in an adverse impact on staff, including dismissal, where they disclose that they have not had the vaccine a Data Protection Impact Assessment is recommended by the ICO before this data is processed. Employers will also need to update their privacy information for staff and volunteers.

Will mandatory vaccination for care home staff affect the position in other sectors?

An employer’s ability to impose a mandatory vaccination requirement for staff is contingent upon their ability to demonstrate that mandatory vaccination is a proportionate way to address the risk of exposure to Covid-19. The nature of the workplace will be a key consideration in determining whether mandatory vaccination can be justified. Employers must also consider potential discrimination or human rights arguments.

Employers considering mandatory vaccination must first:

  • Undertake a detailed risk assessment demonstrating why vaccination is required in addition to other Covid-secure measures.
  • Undertake a consultation with Trade Unions or employee representatives.

Employers should also bear in mind that the position in relation to vaccinations in the workplace is likely to continue to evolve as more research is done in relation to their efficacy in preventing infection and transmission. Employers should therefore keep the situation under review.

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