In April 2021 the government opened consultation regarding a proposed amendment to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. This proposal would require all persons working in CQC regulated care homes, which provide accommodation for persons who require nursing and personal care in England, to be fully vaccinated against COVID-19, unless medically exempt. That proposal was passed by parliament last month (July 2021) and will be effective on 11th November 2021.
What do employers need to do to prepare for this?
Employers need to ensure that they take all reasonable steps to inform their staff of the legislation coming into effect and how this may affect their employment. That applies to all staff, including those who have made it known to you that they have been vaccinated because even those who are vaccinated will have to be able to demonstrate their vaccine status.
Anyone who is medically exempt needs to inform you of this in good time. Those who are vaccine hesitant, for whatever reason, should be encouraged to discuss any concerns they have with a medical practitioner.
All staff should be informed of the following key dates:
- 16th September 2021.
This is the date whereby those working in care homes must have received their first vaccine to be fully double vaccinated by 11th November 2021.
Please note– whether this time window will be adjusted to accommodate those who miss this deadline for their first dose, will be subject to medical advice. We are not advising at this stage to dismiss someone from their employment on account of them missing this deadline.
- 11th November 2021
The regulations will come into force. Staff need to be informed that anyone who is not fully vaccinated by this date (except those who are medically exempt) cannot continue to work.
Such communications aren’t intended to be ‘scare tactics’, it is purely to ensure that your staff are fully aware of the change in the law and how their decision not to be vaccinated may affect their employment.
Does this apply in Scotland, Wales and Northern Ireland?
No. At the present time this ruling applies only in England. Whether that will change in the future is not known at this time.
Please note, the requirement to be fully vaccinated will apply to those living in one of the devolved administrations who work in care homes in England.
What about those who object for reasons based on religion or philosophical belief?
Less favourable treatment on the grounds of religion and philosophical belief is prohibited under the Equality Act.
However, at the moment the only exemption staff working in care homes can rely upon is an exemption for medical reasons. Objections on any other grounds are not going to give a member of staff a valid reason for not being vaccinated.
Therefore, if you do have to remove someone from their employment and they are citing reasons for being vaccinated that are not due to a medical exemption, you will not be committing an act of discrimination by terminating their employment. You must ensure that you act reasonably and lawfully though.
Will an employee’s contract become null and void if they haven’t been vaccinated?
No. No employment contract becomes null and void. Someone’s employment usually ends one of two ways, and this situation is no exception:
A fair procedure to end the employment will be necessary, otherwise you will face potential claims, even though you have no choice but to adhere to the legislation.
Do we need to give staff time off during working hours to get vaccinated?
Given the importance of this matter, employers need to be flexible and make all reasonable attempts to accommodate their staff getting vaccinated.
What happens if a member of staff, who is not medically exempt, continues to refuse the vaccine?
You will need to carry out a fair procedure to potentially bring their employment to an end.
This will involve a meeting with the employee. This meeting should be arranged in writing, the letter scheduling the meeting should make clear the subject of the meeting, the possible outcome of that meeting and affording the employee their right to be accompanied by a fellow employee of the company or a trade union official.
You will need to discuss with the employee their decision not to be vaccinated, just to make sure there isn’t a valid medical reason for the exemption and explore with them any means by which their employment could be protected.
For example, if you have a position which does not require them to be present in the home, such as an administrative role which they can carry out by working from home, you need to ensure this is discussed with them and given due consideration prior to terminating their employment.
This does not mean that employers must create roles for unvaccinated staff or that they have a right to be placed into a role they are wholly unsuited to. It is simply a required step to demonstrate that the termination of their employment was the only option.
What can I accept as proof of vaccination status?
At the present time, we understand that those staff who have been vaccinated by the NHS in England may demonstrate their vaccination status using the NHS COVID Pass service via the following 3 routes:
- the NHS App
- the NHS website – NHS.uk
- the NHS COVID Pass letter- for those who prefer not to access any on-line proof of vaccination facilities, a letter can be requested.
Please note- an NHS appointment card cannot be used as proof of vaccination status.
What can I accept as proof of medical exemption?
As yet we are awaiting further guidance on this. As soon as this becomes available, we will ensure clients are updated.
At the present time, it would appear that staff need only provide confirmation of their exemption as opposed to providing or informing you of the reason for that medical exemption. However, this may be subject to change.
Can we terminate employment before 11th November 2021?
Meetings can be arranged prior to the deadline but you are not advised to terminate employment prior to this date because it is only on or after 11th November 2021 that the ruling comes into effect.
We have seen incidents of employees demanding their employers terminate their employment now because they know they won’t change their mind. You are advised not to do this. Instead, if an employee indicates to you that they don’t wish to carry on working for you, you should simply remind them that it is their choice and if it is their intention to leave then they should make those intentions known to you in writing.
Does this ruling only affect care homes?
No. This ruling will affect other types of businesses who are required to enter and work in care homes. For example, this will apply to funeral services and those providing maintenance work inside a care home. It will also cover those attending for job interviews.
Unless your staff work exclusively in or with care homes in England, chances are if they have chosen not to be vaccinated, this will not affect their future employment.
If, however you are concerned that the vaccine status of any of your staff may prevent them from fulfilling the full spectrum of their role, please contact us for advice. We will need to see their contract of employment and you will need to outline to us the amount of time they do work in care homes.
How is Avensure supporting their clients with this?
We have produced a letter which clients can provide to their staff which confirms the changes in the law and the implications of choosing not to be vaccinated. This letter is available by contacting us.
We will also be able to provide paperwork and guidance for any of our clients who are faced with having to take action to terminate employment contracts in the coming weeks.
The situation is ever changing, and we are awaiting further guidance on some aspects of this change in the law, such as proving medical exemptions. Of course, we will continue to keep our clients updated and provide advice that is bespoke to your business.
And finally, there is no ‘one size fits all’ approach to this and it’s also very important not to get ahead of ourselves and jump the gun. For now, the most important thing is to ensure your staff are informed and directed to reliable sources of medical information regarding vaccines.
Next week– the frequently asked questions from our clients about redundancy.