Contracted out services and mandatory vaccination


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From 11 November CQC registered care homes will only be able to use staff to provide care who can produce evidence that they have had two doses of the COVID-19 vaccine (or are medically exempt).

It's worth remembering that the mandatory vaccination requirement does not only apply to these staff, but also extends to any professionals visiting the care home, such as healthcare workers, tradespeople, hairdressers and beauticians, and CQC inspectors.

This means that contractors providing services, such as repairs and maintenance, will need to ensure that their operatives have been vaccinated against COVID-19 before deploying them in care homes. Registered Providers working within the care sector should make sure that their contractors are aware of the mandatory vaccination requirement and that they put in place measures to make sure that they do not send in staff who either have not received the vaccine, or who cannot prove that they have a medical exemption from the requirement to be vaccinated. 

Issues contractors may face

From a practical viewpoint it's often hard to predict where people will be working. Typically lists of properties requiring repairs are only sent out a month or so in advance so, if those properties include care homes, trying to ensure that those allocated to carry out work in them are double jabbed may well prove logistically challenging.

As the vast majority of those employed to carry out the services will be self-employed, there won't be an issue with potential unfair dismissal claims.  However, it's possible that some of them may be deemed to have worker status which then opens up the potential for discrimination claims.

It's worth noting that there is no exemption for those who refuse the vaccine due to religious beliefs. However, it will still be open to a worker 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. It should be possible for contractors to justify the requirement for mandatory vaccination on the grounds that it is a legal requirement for those carrying out work in care homes, so the risk of expensive claims should be relatively minimal.

There's also the issue of data protection. A person's COVID-19 vaccination status is special category data, as it is their private health information, so any use of this data must be fair, relevant and necessary. Contractors should ensure that they have compelling reasons to check people's COVID status (this will be satisfied if people are being sent in to carry out work in CQC-registered care homes). It's also essential that this status is accurately recorded, and that the collection and storage of the information is secure. As a duty of confidentiality is owed to the person whose vaccination status is being recorded the contractor should ensure that it does not routinely disclose this status unless it has a legitimate and necessary reason to do so.

A further rollout?

Last month the government issued a 6-week consultation (closing on 22 October) which looks at whether mandatory vaccination should be required of all those who come into contact with patients and people receiving care, except those who are medically exempt.

As part of this consultation the government is considering whether some CQC regulated activities provided in residential or inpatient settings, for example, residential recovery services for drugs and alcohol, hospices, and registered extra care and supporting living services, should be subject to the mandatory vaccination requirement.

The implementation of the mandatory vaccinations in care homes had a very tight turnaround and didn't consider notice periods, and the need for employers to consult with their staff. The consultation explains that the government is considering what would be an appropriate grace period before the new regulations would come into force. If the same timescale was followed as before, new regulations would be implemented in March 2022.

Depending on the outcome of the consultation Registered Providers need to be alert to the fact that more of their settings may be affected by the mandatory vaccination requirement. If this is the case they will need to ensure that any contractors that they use are also aware of this and take action accordingly.

The latest on medical exemptions

The operational guidance on the mandatory vaccination requirement for people working or deployed in care homes has recently been updated with more information about the medical exemption from vaccination against COVID-19. It provides a link to some government guidance which sets out the procedure to be used by an individual who needs to apply for proof that they are medically exempt from vaccination.

The temporary self-certification process which is currently in force ends on 24 December, so from Christmas Day all those who are medically exempt will need to verify their status using the NHS COVID Pass.

The individual seeking proof of medical exemption will have to phone the NHS COVID Pass service on 119 to ask for an NHS COVID Pass medical exemptions application form. They will then get an application form by post, will fill in the reason for the medical exemption they are seeking together with relevant evidence, and will then send it to their GP or the relevant clinician stated on the form. The application will then be clinically reviewed by the individual's doctor, specialist or midwife. The results of the application will be received by post 2 to 3 weeks after applying, and if the individual gets a medical exemption they can use the NHS COVID Pass. The Pass won't show others that the individual has a medical exemption, it will just show that the individual has the Pass. However, the individual will also get a confirmation letter which they should keep for their records. This letter will have to be used to prove that they are unable to get vaccinated if they work or volunteer in a care home.

Pregnant women do not have to use the Pass if they choose to use a medical exemption. If they have a Mat B1 certificate they can show this instead. The exemption will expire 16 weeks post-partum to enable them to become fully vaccinated after the birth.

It is anticipated that most requests for a medical exemption will go through an individual's specialist doctor rather than their GP as reasons for valid exemptions are relatively rare, but some will inevitably come though GPs. There is no appeal process against the outcome of the medical exemption process.

It will be up to the GP, midwife or specialist to check the evidence given by the individual on their application form and to review it against the relevant clinical guidelines and the individual's medical records.  

It remains to be seen exactly how the process will work in practice, but it will be a relief to care providers, and their contractors, that they will soon be able to rely on something more concrete than a self-certification process to be notified of medical exemptions.

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