Nikita Passi, solicitor at employment specialist Napthens, explains the key facts surrounding the recent government announcement that requires all social care workers to be vaccinated against COVID-19.
The Government has announced that from 1 April 2022, all health and social care workers working in England must be fully vaccinated against COVID-19, unless they have a medical exemption.
This requirement comes after the coming into force of the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 which requires all care home workers, and some third parties entering CQC regulated care homes, to be fully vaccinated against COVID-19 from 11 November 2021. It is important to note, however, that this new legislative requirement does not apply to COVID-19 booster jabs or flu vaccines at this time, however the Government will keep this under review.
This new requirement will apply to doctors, nurses, dentists, domiciliary care workers and to volunteers who have face to face contact with service users. It is thought that this requirement will also apply to ancillary staff such as porters or receptionists who may have social contact with patients but are not directly involved in their care.
It is reported that around 90% of front-line NHS workers are already fully vaccinated against COVID-19. However, it is thought that over 103,000 NHS trust workers and 105,000 domiciliary care workers are not yet fully vaccinated.
From an employment perspective, the introduction of the mandatory COVID-19 vaccine could see some health and social care workers deciding to leave their roles. As with the introduction of the mandatory requirement in CQC-registered care homes, many argue that existing health care staffing issues could be exacerbated.
In addition to this, employers would need to ensure that any staff who are not vaccinated by 1 April 2022 have a valid exemption and, if they do not, the employer would need to ensure it considers alternatives to dismissal, which could include moving the individual to a role which is not a forward-facing role with service users or, in the event of no suitable alternative, ensuring they follow a fair dismissal process.
If an employer fails to consider suitable alternatives roles for unvaccinated workers or fails to follow a fair dismissal process, this could expose them to claims of unfair dismissal or discrimination, particularly if an individual is refusing to be vaccinated against COVID-19 based on an existing medical condition, because they are pregnant or they have certain religious views or beliefs. Whilst the prospects of such claims may be questionable, this will not prevent claims being brought and, as this is a new, quickly developing area of law, there is currently little precedent for how such claims will be treated by the Employment Tribunal.
In readiness for the new legislation coming into force, employers should ensure that they are making their staff aware of the new requirement. If a member of staff has a medical exemption, the employer should ensure that they have proof of this exemption in readiness and prior to the legislation coming into force.
Employers should also be aware that by gathering data on vaccination status, they are processing “special category personal data” under the Data Protection Act 2018 and therefore, they should ensure that they have the appropriate procedures in place to ensure such data is handled correctly.
Should you have any questions in relation to the mandatory COVID-19 vaccinations for health and social care staff or care home workers, please feel free to contact a member of the Employment Team at Napthens Solicitors.