Following the Government’s announcement earlier in the year for plans to make the COVID-19 vaccine for people working in care homes compulsory, the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (the ‘Regulations’) have been approved.
The Regulations make it mandatory for a person working or providing professional services in a care home in England to have the COVID-19 vaccine.
The Regulations amend the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and mean that from 11 November 2021, anyone working, including those providing ‘personal care’, in a Care Quality Commission registered care home will need to be vaccinated with a complete course of an approved COVID-19 vaccine unless they have a medical exemption. There are limited circumstances where an unvaccinated person may still enter the premises. In summary, a person must not enter the care home unless:
- The person resides in the care home used by the Registered Person (a resident of the care home) – ‘Registered Person’ means someone registered with the CQC as a manager or service provider in respect of a regulated activity – in this case, the regulated activity for the provision of accommodation for persons requiring nursing or personal care
- The person has provided the Registered Person with satisfactory evidence that:
- They have been vaccinated with both does of an authorised vaccine; or
- They are medically exempt and do not need to be fully vaccinated
- It is reasonably necessary for the person to provide emergency assistance in the care home
- It is reasonably necessary for the person to provide urgent maintenance assistance to the care home
- The person is a member of the emergency services and carrying out their duties
- The person is a friend or relative of the resident they are visiting
- The person is visiting a resident who is dying
- It is reasonably necessary for the person to provide comfort or support to a resident in relation to a resident’s bereavement following the death of a relative or friend
- The person is under 18
If the person is not entering the building, they do not need to show vaccination status. Surrounding grounds do not form part of the care home and therefore the Regulations do not apply in that area. For example, an unvaccinated (and not exempt) delivery person may bring parcels to the care home door but may not enter the building.
Whilst these Regulations apply to care homes in England only, they are not limited to people who live in England. They will apply to any person who works in a care home in England. For example, a person living in Wales but working in a care home in England will have to comply with the Regulations.
How is this managed?
It is the Registered Person’s responsibility to ensure that everyone who enters the care home is either vaccinated or exempt from vaccination. The Registered Person can have assistance in carrying out their duties, however the Registered Person remains legally responsible.
It will be the Registered Person’s responsibility to identify a procedure to check vaccination status. You may decide that it is appropriate to have a check point at the entry of the care home to check vaccination status.
How is this recorded?
The Registered Person should keep a record of:
- The vaccination or exemption status of all staff members, along with the date the check was carried out
- The vaccination or exemption status of all persons entering the care home unless exempt, along with the date the check was carried out
The Registered Person must record whether the person is vaccinated or not, and if they are exempt. Individuals entering the care home will only need to demonstrate their vaccination status on the first time of entry. All subsequent checks can be done using the records of the previous checks which means that there will not be a requirement to re-check every individual each time they enter.
All records must be kept in accordance with data protection legislation. The Government has inserted a provision in the Regulations so that a service provider may process information provided by a person wanting to prove their vaccination status, in accordance with the Data Protection Act 2018. However, employers will also need to ensure that they are meeting their requirements under the UK General Data Protection Regulations (UK GDPR). For example, as the employer is storing the information, they would need to consider the implications of storing that data.
An employee’s health information falls into the category of ‘special category personal data’. When processing such data, the employer must identify both a lawful basis under Article 6(1) and a condition for processing under Article 9 of UK GDPR. If an employer is unable to do so, any processing is in breach of UK GDPR.
Medical Exemption
There are circumstances in which an exemption may be granted, and they will reflect the Green Book on Immunisation against infectious disease, chapter 14a and clinical advice from the Joint Committee of Vaccination and Immunisation (JCVI).
The Government is currently developing a clear process for individuals to follow if they believe that they are medically exempt. This process will be in accordance with certification for domestic events, exemptions from self-isolation for confirmed contacts and travel. Further guidance on this will follow.
Evidence
NHSX is considering how the NHS COVID PASS can be used to prove vaccination status. Until this is confirmed, employers may adopt this process by choice. For individuals that live in England, this can be done using the NHS app, the NHS website, or the NHS COVID PASS letter. The vaccine appointment card is insufficient evidence. For individuals that live in Scotland or Wales, they can obtain records of their vaccination through nhsinformscot. or gov.wales. respectively. The Government is currently looking into how individuals who have been vaccinated outside of the UK can evidence their vaccination status.
Recruitment
If an applicant is not yet vaccinated, any interview should take place outside of the care home. A person will only be able to start working in a care home once they have proved their vaccination status or proved that they are medically exempt.
Prospective Residents
Whilst residents of the care home are not required to be fully vaccinated, any prospective residents and their families visiting the care home are required to prove their vaccination status or prove their medical exemption before they can enter the building. Based on this principle, the same will apply to trial visits at the care home, as well as respite care taking place at the care home.
If any prospective residents are not vaccinated, you may want to consider holding remote visits via a video call.
What should employers be doing?
Employers should speak to their employees as soon as possible about the new Regulations, implement processes to monitor vaccination status and possible consequences for failure to comply.
If a trade union is recognised or employee representatives are in place, there may be a legal duty to consult with them. Otherwise, employers can engage with their employees on an individual basis to start to identify who has already been vaccinated (with evidence), who is medically exempt and who still needs to get their vaccine in order to prepare for the date the Regulations come into force.
Where employers have individuals who are absent from work, such as those on maternity or long-term sick, they should start communications with the employees in good time.
What will the CQC do?
CQC have given guidance on what they will do in relation to registration, ongoing monitoring and inspection and enforcement.
Registration
CQC will seek assurance from providers (new and existing) that they will have firm policies and procedures in place to:
- Monitor vaccination and COVID-19 status off their staff
- Ensure that staff maintain an up-to-date vaccination status (by providing guidance and assistance for staff to get vaccinated) and ensure that staff maintain best Infection Prevention and Control (IPC) practice
- Monitor vaccination and COVID-19 status of anyone entering the care home
- Where applicable, make reasonable adjustments to ensure people using the service receive safe care and treatment
For any new manager applications, CQC will seek assurance that:
- All applicants are fully vaccinated or are medically exempt
- All applicants are aware of their duties in relation to the Regulations
Ongoing monitoring and inspection
CQC will be doing the following:
- Monitoring that providers comply with the Regulations
CQC is proposing to add the following question to the Provider Information Return (PIR), ‘How are you assured that those you employ and deploy within your service have had their mandatory vaccinations?’ A similar question will also be built into their monitoring approach and further information on this will be provided.
If the CQC has any information of concern, it will be followed up. This may include seeking some assurance from the provider and/or an on-site inspection. On inspection, they will seek evidence of compliance.
Registered persons will not be required to show a record of the evidence, but they will need to be able to provide reassurance that the relevant processes are in place to comply with the Regulations.
CQC inspectors are included within the scope of visitors and therefore will be captured by the Regulations and refusal to grant access if not vaccinated or medically exempt would be appropriate. They are currently looking into the practical implications of this.
Enforcement
Any enforcement activity by the CQC as a result of a breach of the Regulations will be undertaken on a proportionate basis, based on their assessment of the impact on quality of care and people’s safety, in line with CQC’s existing enforcement policy. CQC will decide whether/what action to take based on proportionality, treating each case individually and on its own merits, in line with CQC’s enforcement policy.
What if someone is not vaccinated and is not medically exempt?
If an individual is not vaccinated and not medically exempt from the vaccine, employers will need to consider a number of options before they jump to dismissal. The options include deployment to another area, perhaps the head office, or allowing leave in order to get fully vaccinated/provide evidence of vaccination status.
As the requirement to have the vaccination is covered by legislation, employers may have a fair reason for dismissing an employee who is not vaccinated or medically exempt. A potentially fair reason could be:
- The employee cannot continue to work in their position without the employer contravening a duty or restriction imposed by or under an enactment, or
- Some other substantial reason of a kind as to justify the dismissal of an employee holding the position which the employee held
If an employer is considering dismissal for this reason, they must also be able to show that they have followed a fair procedure and act reasonably in treating the potentially fair reason as a sufficient reason for dismissal. As a minimum, the following steps are recommended:
- Consult with the employee
- Warn the employee of the risk of dismissal if they do not evidence they are vaccinated or exempt within specified timescales
- Give the employee an opportunity to explain their circumstances and any reasons they should not be dismissed – this should usually be at a meeting, but this can be held virtually or if necessary, by telephone
- Allow the individual to be accompanied by a trade union representative or work colleague
- Take and share notes of any formal meetings, to avoid misunderstandings or disputes about what was said
- Explore alternatives to dismissal, for example redeployment opportunities where vaccination is not required
- Act consistently where cases are alike, but also considering relevant differences between cases
- Decide on an outcome and communicate the outcome to the employee
- Provide a right of appeal against dismissal
Employers will also need to be mindful that a decision to dismiss is not discriminatory, whether directly or indirectly. Having said that, a care home will be able to take advantage of an exception to the usual rules prohibiting discrimination. The Regulations require care homes only to allow those who are vaccinated or medically exempt workers, or those under 18 to enter a care home. The care home will also not contravene the Equality Act 2010 in relation to work, if the care home does anything it must do pursuant to the Regulations. This is in so far as it relates to age, disability, religion, or belief.
We urge you to seek legal advice and consider alternatives before dismissal is contemplated.
Dates for your diary
22 July 2021 Start of 16-week grace period following announcement of new Regulations
16 September 2021 The last date for care home workers to get their first dose of the vaccine so that they are fully vaccinated by the time the Regulations come into force
11 November 2021 The new Regulations come into force
