From 11 November 2021 COVID-19 vaccinations will effectively be made compulsory for those working in care homes in England. The legislation applies to all Care Quality Commission-regulated service providers of nursing and personal care, in care homes.

Care workers have had 16 weeks from the introduction of the legislation on 22 July 2021 to decide to take up the offer of vaccination. This means that 16 September was the last date for care workers to get their first vaccine, so they are fully vaccinated by the 11 November.

At this time booster doses are not included in the legislation. Managers are strongly advised to encourage staff to take up booster vaccines if eligible and a provision for booster vaccines may be added to the regulations in the future. Staff who can prove they are clinically exempt will not be required to have the vaccination.

On 9 September 2021 the government launched a consultation on mandatory vaccines for frontline NHS and care workers in England. We will update you once the results of the consultation are available.

Some NHS frontline healthcare workers have previously been required or recommended to have vaccines including for example hepatitis B and flu for certain healthcare staff but this is applied through workplace health and safety and occupational health policies.

Vaccination requires an individual’s informed and voluntary consent and cannot be forced. If employees refuse vaccination, to discharge their health and safety duty, the employer may need to consider other steps that can be taken to protect them. An employer could consider potential disciplinary proceedings for failure to follow a reasonable instruction in certain settings (such as health or care) where an employees’ refusal has serious consequences but this approach is not without risk (as outlined below). Any employers considering this approach must be sure to follow any government guidance that emerges and seek specific legal advice, and should bear in mind the following:

• Warning all staff that vaccination is likely to be a condition of employment
• Reviewing employment contracts (remembering that enforcing a change without employees’ agreement would be in breach of contract and employees could resign and claim constructive unfair dismissal)
• Any incentives offered (such as vouchers) should not discriminate against employees with protected characteristics (such as age, disability or belief) who have reasons for not having the vaccination
• Communicating to any employees that have to travel for work especially to amber and red countries, that the vaccine is likely to be a necessary job requirement
• Any vaccination strategy must include exceptions for employees who cannot accept the vaccine due to medical or possibly belief reasons.

The mandatory care home vaccination policy is currently the subject of a legal challenge on a number of grounds including the way the legislation was introduced, discrimination, human rights issues and the availability of other methods of risk management such as testing. Mandatory vaccination could also be found to discriminate on the basis of disability, or religious or philosophical belief. Employers cannot require employees or potential employees to be vaccinated, unless they work in a sector (such as care homes) where a legal requirement has been introduced.

*We are offering a reduced rate on a Vaccination Policy for all businesses who call to speak with Sarah Collier or Sarah Taylor before 29 October 2021.