Mandatory vaccination: opening Pandora's box
Following the government's announcement last month that vaccination against Covid-19 will become mandatory for all care home staff, volunteers and anyone else entering the care home for work purposes (subject to certain exemptions), care providers have been grappling with the practicalities of implementing the policy.
There is also a proposal to widen the vaccination requirement to include flu jabs.
The new law will apply to care homes in England which are registered with the Care Quality Commission. It does not apply to other CQC services or services not regulated by CQC, such as domiciliary services and supported housing. The requirement for mandatory vaccination will extend to any professionals visiting the care home, such as healthcare workers, tradespeople, hairdressers and beauticians, and CQC inspectors. The mandatory vaccination requirement will be implemented via the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 which were laid before Parliament in June. The new requirement is likely to be law from the end of October/beginning of November (this timing is subject to Parliamentary approval and a subsequent 16-week grace period). All those covered by the amended Regulations will need to produce evidence of having had two doses of a Covid-19 vaccine, or evidence that they are exempt from vaccination.
What's the likelihood of the draft legislation passing into law? Under the Health and Social Care Act 2008 there is an explicit provision for consultation about new regulations with such persons as the Secretary of State considers appropriate. The government has only consulted on mandatory vaccination for workers in care homes with residents over the age of 65 so will this be sufficient to introduce measures for the care home sector as a whole? Even if it is deemed to be sufficient (which is surely debatable) then the Regulations will have to receive Parliamentary approval before they can go on the statute book. It will be interesting to see if there is any objection as the majority consulted were not in favour of mandatory vaccination and SAGE's objective was not to reach 100% vaccination in the population.
Who will be exempt?
Not everyone entering a care home has to be vaccinated. The draft Regulations provide that the requirement does not apply to residents of the care home, friends and family of residents who are visiting, those entering the home to assist with an emergency or to carry out urgent maintenance work, or those under the age of 18.
Individuals will also be exempt if they have any allergy or condition that the Green Book lists (Covid-19: the Green Book, chapter 14a – vaccination information for public health officials) as a reason not to administer a vaccine. The government states in the consultation response that it intends to publish further guidance to describe, in more detail, the scope and process for granting exemptions, which will continue to be informed by the Green Book. The guidance will also set out suitable grace periods after a temporary exemption has expired.
The consultation response notes that, in relation to those who are exempt and can be deployed in the care home, the government will work with stakeholders to produce guidance on steps to take to mitigate the risk of Covid-19 transmission to residents.
How will vaccination status be evidenced?
This is a matter of concern to care providers. The government plans to offer an option to show your vaccination status via the NHS App, and where that is not possible, a web-based solution for people who do not have access to the app, or a letter.
In order to protect against inadvertent breaches of data protection law, the draft Regulations provide that a service provider can process information provided by a person wanting to prove their vaccination status without falling foul of the Data Protection Act 2018.
However, as the regulations are rolled out, it is a worry for care providers, to manage the evidence of occasional users to care homes.
Areas of concern
Assuming that the controversial Regulations do become law what are the implications for care providers? Will it be possible to dismiss an employee who refuses to have the vaccine? The short answer is yes, but the matter won't be entirely straightforward. The new law would give an employer a fair reason for the dismissal, but the employee concerned could still bring a claim for unfair dismissal. In order to successfully defend such a claim, the employer would have to show that the need to take the vaccine was properly explained to the employee, and that a fair procedure was used to dismiss them.
What about discrimination claims? It's worth noting that the government's response to the consultation makes it clear that there will be no exemption for those who refuse the vaccine due to religious beliefs. The response notes that such an exemption would be difficult to implement and prove and would be likely to significantly reduce the impact of the policy in achieving its aims of increasing levels of protection for both residents and staff. It also notes that it may cause tension between those who have been exempted, and other staff who have received the vaccine, as a condition of deployment. Many of the vaccine hesitant are identified as BAME. Allegations of discrimination that the dismissal of large numbers of staff sharing the same protected characteristic could be made.
It will still be open to an employee to argue that a mandatory requirement to vaccinate is discriminatory. Although being an "anti-vaxxer" is unlikely to be capable of being a religion or belief that gives someone protection under the Equality Act 2010 it may be possible for vegan employees to object if the vaccine contains animal products, and employees with certain medical conditions may be advised against or choose not to take the vaccine. Employers will be able to justify a mandatory vaccination policy on the grounds that they are legally obliged to have one but might still have to defend high profile and expensive claims.
Perhaps the biggest issue is recruitment. Will people be put off applying for work in care homes due to the requirement to be vaccinated? In a sector which experiences difficulties in recruiting (and in some areas of the UK are already seeing the effect of Brexit on recruitment), this potential knock on effect will be problematic.
The other issue to consider is that it is likely that the mandatory vaccinations will be rolled out in stages. If that is the case, those who can no longer work in care homes after the new law comes in in the Autumn, may well then seek work in services who are not covered. Many care providers are concerned that those who receive domiciliary services are no less vulnerable than those in care homes. As such it is sensible for care providers to consider introduction on mandatory vaccination at the same time as the new law.
The Department of Health and Social Care will be holding stakeholder meetings to work through any practical difficulties caused by the mandatory vaccination requirement. It also plans to issue lots of operating guidelines to facilitate the process for care providers.
What's clear is that a legal requirement to be vaccinated will pose a number of difficulties and is highly likely to lead to litigation. While the government is unlikely to give an indemnity against any challenges to the legal requirement, it may intervene in claims that are brought as a result of its policy. The rationale behind mandatory vaccination is clear, but the knock-on effects are anything but.
Care providers need to consider carefully how to implement these changes including deciding who it should apply to, and consultation with all staff. We offer a vaccination policy for a fixed fee and advise more generally on implementing the vaccination.