The deadline for all care home workers to be vaccinated is fast approaching and whilst, obviously, this inactivate is going to impact the care home sector the most… if your business provides services into care homes this is also going to affect you.
The Department of Health and Social Care (DHSC) has amended the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 so that, from 11 November 2021, all care home workers and other visiting professionals will need to be fully vaccinated against COVID-19, unless they have an exemption, or there is an emergency.
This will apply to most people who enter the care home for work, including:
- agency workers
- contractors or self-employed people hired to carry out work in a care home, for example tradespeople, occupational therapists or hairdressers
- NHS staff
The person responsible for checking who can enter the care home is the care home’s ‘registered person’. This is the person registered with the CQC as the care home’s manager or service provider.
Are you and your workforce ready?
Key dates to bear in mind are:
- 22 July (this is when the grace period starts)
- 16 September (last date for care home workers to get their first dose so they are fully vaccinated by the time the regulations come into force)
- 11 November (regulations come into force)
Who doesn’t it apply to?
The following people are exempt:
- anyone with a medical exemption
- current care home residents and service users
- friends and family of a current resident
- workers who do not enter the care home, for example a gardener
- someone providing emergency assistance or urgent maintenance
- members of the emergency services who need to enter the care home to carry out their job
- anyone visiting a dying resident
- anyone giving bereavement support to a resident after the death of a relative or friend
- anyone under 18*
*A person under the age of 18 does not have to provide evidence of vaccination or exemption before entering a care home. Frontline health and care staff aged 16 and over are eligible for a vaccine and should make sure they get a full course of a Medicines and Healthcare Products Regulatory Agency (MHRA) approved COVID-19 vaccine before they turn 18. All 17 year olds will be able to book a vaccine up to 3 months before their 18th birthday.
Recruitment of new staff
The regulations also apply to new staff recruited by the registered provider. It is important to note that only new recruits that have had a full course of an MHRA approved COVID-19 vaccine or are medically exempt from the requirement are eligible to work in the care home.
Care homes should notify prospective staff of the requirement at the start of the application process and undertake appropriate checks, during the recruitment process, to ensure the individual is eligible to work in the care home. It will only be possible for a newly appointed member of staff to start working in the care home once they have provided evidence of their vaccination status or a medical exemption.
📍 Note: Be aware of how this requirement might slow down your ability to recruit quickly if interviewing applicants not yet vaccinated, or fully vaccinated.
Other issues to be aware of
You need to remember that a person’s COVID status is special category personal data, as it is their private health information.
You should ensure that the collection of this data is secure. You should respect any duty of confidentiality you owe, and you should not routinely disclose a person’s COVID status unless you have a legitimate and justifiable reason to do so.
The UK GDPR does not dictate how long you should keep personal data. It is up to you to justify this, based on your purposes for processing. You are in the best position to judge how long you need it.
When recording vaccination information, you must ensure that you do not hold the information for longer than is necessary, and do not use the data in ways people would not reasonably expect.
You should have a robust data protection policy in relation to the collection, processing and storage of personal information and if in doubt get in touch and we can help.
📍 Note: whilst many organisations are aware of the requirements when gathering data, many errors occur when data gathered is forgotten, resulting in it being kept for longer than necessary or not kept safely.
Human Rights and other legislation
The government has not yet been challenged on this new law nor explained why it applies only to care workers, but not to medical professionals including those in hospitals. It is not out of the realms of possibility that someone or some body (e.g. a union) will seek to sue the government over this and probably drag some employers into the case too. There is nothing you can do about this, but we just ask you to be aware and act with caution if you have someone refusing a vaccine but threatening legal action. Get advice before you dismiss them!
Where do we start?
It is essential that you undertake a vaccination audit before the 11 November deadline and address any issues that arise…
- Do you know and have you got recorded the vaccination status of all of your staff?
- What will you consider ‘proof’ of vaccination? Especially if you recruit from a wide pool of international workers or recruit some who have been volunteers in new vaccine trials?
- Will you have staff who have only had the first vaccination by the deadline date?
- Have you got staff who are medically exempt? Have they got the proof you need?
- And what about those staff who are adamant they will not be having the vaccination? How will you deal with them and do you need support with that?
Consultation with staff
It is important that if you haven’t already started to consult with your staff regarding the change in regulations and those that could be impacted then you need to start this now. Have you got any redeployment options for those who will not be legally compliant on the 11 November as they won’t be able to work? Is there an option to grant some unpaid leave for those awaiting a second vaccination? Also, what about any pregnant staff, what are their views on vaccinations ?
If, following consultation, you have care home workers who still refuse to be vaccinated you should look to redeploy them. However, we appreciate that for many care homes since the requirement covers all staff who work inside the home to be vaccinated this is likely to be limited and if redeployment is not a feasible option you may need to look at following a fair dismissal process to terminate employment.
When considering the fairness of any dismissal, did the employer act reasonably or unreasonably in treating the reason as sufficient to warrant the dismissal of an employee, did they follow a fair process? Once the new regulations come into force, it is likely (but not always guaranteed) that it would be deemed fair for the employer to terminate employment if the individual could not continue to work in the position.
Providing services into the care sector?
Whilst the care sector is set up to have numerous checks, safeguards and policies in place, many organisations providing services into the sector will not be set up for this. Consider book keepers, agency chefs, training firms, H&S consultants, building firms, plumbers etc.
If you have any care home clients, we recommend you read all of the above carefully and then work with any care homes in your client list in order to prepare for when your staff need to enter the care home, ahead of them having to do so. As with the care homes, you will have to tread carefully and sensitively when asking your staff about vaccinations and be extremely careful what you do with any data collected. Of course, you will be in an easier position than care homes in that if a member of staff is not vaccinated then you will likely be able to use them in other locations/organisations. As a result you are unlikely to be able to dismiss fairly if they refuse vaccinations or refuse to share whether they have been vaccinated.
Many are struggling to see the logic of just requiring vaccinations in one sector so, if you are in another sector, you may start to consider your approach if this is rolled out to you. Planning is important, especially in respect of any impact on recruitment in what everyone knows is a very challenging recruitment market.
Need help with your processes? Jaluch can provide you with pragmatic, down to earth and practical HR advice to guide you through the process. We can help with announcements to staff, scripts for consultation meetings, problem solving and ultimately following a fair process for dismissal if this becomes necessary along (including any appeals and/or grievances) that may come your way… with updates to your contracts of employment and various policies from data protection and retention to privacy and vaccination policy. Jaluch can help.
Not in a care home setting, but thinking of introducing a vaccination policy? We can guide and advise you.