Mandatory Covid vaccinations for care home staff

Ministers recently voted in favour of approving the draft of The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021, which has since been approved by the House of Lords.  

This was despite a parliamentary committee urging the government to delay the vote from proceeding in view of concerns over the impact of staff shortages. However, the government stated the purpose of introducing such a requirement is to reduce the spread of the virus in care homes to protect residents who are vulnerable to the disease.

Following a 16 week grace period after formal approval of the Regulations, the relevant legislative provisions will come into force on 11 November 2021. At such time, it will become a mandatory requirement for all people ‘working’ or otherwise providing any ‘professional services’ in care homes (which are registered with the Care Quality Commission (“CQC”)) in England to be fully vaccinated against COVID-19. 

It will require the registered person of the registered activity to prevent entry into a care home premises to anyone (whom is not a resident) over the age of 18 years. This is unless they are provided with evidence to satisfy the party concerned has been vaccinated with a complete course of doses of an authorised vaccine, or that, due to ‘clinical reasons’, they ought to have not been vaccinated.  

The Regulations provide that unvaccinated persons may still enter the premises in certain limited circumstances, including:

  • To provide emergency assistance;
  • To visit a resident service user as a friend or relative;
  • To visit a service user who is dying; or
  • Where it is reasonably necessary to provide urgent maintenance or provide comfort or support to a service user in relation to bereavement following the death of a friend or relative.

We anticipate that guidance will be published in due course to support the sector with its preparation to secure compliance. However, in the meantime, some of the key steps that care providers can take to get their workforce ready will include:

  1. Informing all staff members of the approved Regulations and time scales by which they need to have had the double vaccination. Explain to staff (and others) they will need to provide evidence of the vaccination (including the booster proposed in the Autumn) and provide details of what forms of evidence will be accepted and by when it needs to be produced. It is imperative the information given to staff members is clear and accessible.
  2. Consult with staff members - encouraging them to obtain full vaccination or otherwise understand whether there is a clinical reason that applies to exempt them from the requirement. The process is likely to involve details about the risks pertaining to failure to obtain the vaccination and produce proper evidence of the same or the clinical reason(s) relied upon.
  3. In the event any staff members refuse to obtain full vaccination and supply evidence, and do not have clinical reasons exempting them or another valid legal basis for refusing. Due to protected characteristics such as religious beliefs, care providers will need to consider if there are alternatives to dismissal. For example, exploring the prospect of redeployment to alternative roles outside of the care home premises. Naturally, such roles are going to be limited and some staff are likely to be dismissed, thus a fair and reasonable approach will need to be invoked.
  4. In such circumstances where a dismissal is the outcome, consideration will need to be given to any applicable notice periods. Thus, consultation with staff members will need to be prompt to ascertain their standpoint.
  5. Care providers will need to design and implement proper and effective systems to capture and store evidence of staff vaccinations or reasons for exemption.
  6. Care providers will also need to design and implement a proper and effective system relating to evidence or reasons of exemptions in respect of non-staff members. It is important to note that the legislation when in force will apply to any third party entering the care home premises whether routinely or otherwise.
  7. Provide suitable training to all members of staff involved to ensure they fully understand the legal requirements and the processes, procedures and/or policies to be introduced.
  8. Update any written policies. For example, in respect of vaccination and data protection. 

 

Failure by a care provider to comply

It is important to note that failure by a care provider (and individuals on its behalf) to comply with the regulation requirements could result in the CQC or other regulators exercising their enforcement powers to take action – whether civil or criminal in nature. 

Any decision by the CQC or others on whether to take enforcement action and if so, what specific action to take, will be dependent upon the circumstances and seriousness of each individual case. There will be a range of factors taken into consideration, including assessments on the impact on quality of care and people’s safety, whether there is a pattern of offending, and any mitigating circumstances.

The CQC has far and wide-reaching enforcement powers. In the event, it elects to take civil action against you, it retains the ability to cancel, suspend or impose conditions on the registration of a provider and its staff.  

 

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.