From 11 November 2021, all care home workers and anyone entering a care home must be fully vaccinated, unless they are exempt under the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (the Amendment Regulations).

On 4 August 2021, operational guidance was published by the Department of Health and Social Care (DHSC). ACAS has now published its own guidance to help employees and employers at CQC-registered care homes in England understand the vaccination rules. The guidance encourages employers to talk to staff (including those absent from work) about the new requirements before 11 November 2021, in particular to highlight the 16 September 2021 date by which affected staff should have received their first vaccine dose. It also encourages consultation with recognised trade union or employee representatives, which should cover (among other things):

·       Who is exempt.

·       How checks will be undertaken to confirm vaccination status.

·       How compliance with the UK GDPR will be ensured.

·       Time off and pay for staff to get vaccinated and recover from any side effects.

The guidance notes that the vaccination requirement extends to agency workers, contractors, volunteers, work experience students, job applicants and other visitors (such as medical staff, tradespersons and therapists).

The guidance provides information on how to check if an individual is vaccinated and what information must be recorded. If an employee refuses to be vaccinated and is not exempt, ACAS encourages discussion and informal resolution. It suggests options such as redeployment, short-term paid or unpaid leave (if an employee is awaiting vaccination or proof of exemption), or the undertaking of training for a limited time. If a resolution cannot be found, ACAS advises that employers may start disciplinary proceedings if all available options have been explored. They must follow a fair procedure, including offering the right to appeal any decision. The guidance states that employers should treat everyone fairly and follow discrimination law.

Judicial review

The mandatory vaccination requirements have met with some resistance, and on 9 September 2021, judicial review proceedings were issued challenging the requirements.

The proceedings are reported to have been brought on five grounds. It is argued that the Amendment Regulations are incompatible with laws prohibiting the enforcement of mandatory vaccines; interfere with the public's right to "bodily integrity" and are severe, unnecessary and disproportionate; will disproportionately impact women and those who identify as Black/Caribbean/Black British, in contravention of Articles 8 and 14 of the European Convention on Human Rights; and are irrational and will lead to shortages in both frontline and non-frontline care workers.

It is also argued that the Health Secretary failed to consider the efficacy of alternatives to mandatory vaccination and did not consider the vaccination rate of care homes or the impact of natural immunity.

If the judicial review challenge were to be successful (which we think, on balance, is unlikely), it could delay or even quash roll out of the mandatory vaccination requirements.

Self-certification

On 15 September 2021, the DHSC published a letter setting out how, on a temporary basis, people working or volunteering in care homes who cannot have a COVID-19 vaccine for a medical reason will be able to self-certify that they meet the medical exemption criteria. The Self-certification form for people with medical exemptions created by the DHSC can be used on a temporary basis prior to the launch of the NHS COVID Pass system. Once the NHS COVID Pass system is launched, a formal medical exemption will need to be applied for and any self-certification will expire after 12 weeks.

Individuals who have received a COVID-19 vaccination abroad can also self-certify as medically exempt using the Self-certification form for people vaccinated abroad. It is not clinically appropriate to be vaccinated in the UK if a partial or full course of vaccination has been received overseas. The form notes that this temporary exemption may expire once further guidance is issued and continued deployment in a care home may depend on a completed course of an authorised COVID-19 vaccination.

As ever, if you wish to discuss any of the above with the team at Synchrony Law, please get in touch.