Healthcare works: no jab, no job
On 22nd July 2021 the Government passed legislation that will make it compulsory for care home workers to be vaccinated as from 22nd November 2021.
Given the low take up of the vaccine amongst care home staff; the risk COVID poses to the vulnerable; and the impending flu season; the Government are clearly eager to take action to protect those most at risk from Covid-19.
However, this decision brings into question whether others working in medical services, or in public facing roles, will become ‘no jab, no job’ in the future.
The UK’s Covid-19 vaccination programme began in December 2020. At that time the Government was reluctant to make it compulsory for anyone to have the vaccination. Whilst mass vaccination is a generally accepted part of life in the UK (babies and children are routinely vaccinated against a number of serious diseases, and most adults are offered the flu vaccine on an annual basis), this has typically been a question of choice rather than legal obligation. This contrasts with other European countries, such as Italy, that in 2017 introduced compulsory vaccination for measles and 9 other contagious diseases.
The Office of National Statistic estimated 30,000 more people died during the coronavirus outbreak than in the same period the previous year, and that a further additional 14,000 people have died since the beginning of this year due to COVID outbreaks. Deaths resulting from flu meanwhile are significantly reduced.
In addition, Public Health England has carried out an analysis on the direct and indirect impact of the vaccination programme and concluded that as of 15 July 2021, it has prevented between 11 and 12.5 million infections and between 35,200 and 38,600 deaths since it began.
Attempts to convince care home workers to take the vaccine voluntarily have failed. In an attempt to protect some of the most vulnerable in society, the Government has responded by bringing in this legislation.
The regulations were passed on 22nd July 2021. There is a 16 week grace period to allow for care homes to again ask staff to voluntarily vaccinate. The 16th September 2021 is the last date for care home workers to get their first dose so they are fully vaccinated by the time the regulations come into force, on 22nd November 2021.
In summary, the regulations provide that a person must not enter a care home unless:
• the person resides at the care home;
• the person has provided satisfactory evidence that:
• they have been vaccinated with the complete course of an authorised vaccine
• they, for clinical reasons, should not be vaccinated
• it is reasonably necessary for the person to provide emergency assistance in the care home
• it is reasonably necessary for the person to provide urgent maintenance assistance to the care home
• the person is a member of the emergency services in execution of their duties
• the person is a friend or relative of the resident visiting the resident
• the person is visiting a resident who is dying
• it is reasonably necessary for the person to provide comfort or support to a resident in relation to a resident’s bereavement following the death of a relative or friend
• the person is under the age of 18
Care homes will now need to obtain evidence from all staff that they have either been vaccinated or they are exempt. If inspected, the Care Quality Commission (CQC) will be checking to see if the regulations are being complied with. Ironically if a CQC inspector could not show a vaccination passport or evidence of exemption the care home could refuse them entry.
Care homes should hold meetings with staff to explain the regulations and what the consequences will be if staff do not comply with them. Encourage staff to voluntarily have the vaccine and set out the dates they must have it by. Allow for questions from staff and try to provide as much information as possible. Set up meetings with reluctant staff so they can discuss their concerns privately with you.
If the employee does not provide evidence of a vaccination or exempt status, then the care home will need to consider redeployment. This is likely to be difficult if all functions, including administrative tasks, are provided at the same location. If there are no redeployment opportunities, then a care home could fairly dismiss the employee for non-compliance with the regulations.
It is not just staff that will need to comply with this, care homes will need to set up systems to check that anyone requiring a vaccine or exempt status can evidence this before entering the home; not including friends of relatives who are visiting the resident.
The Government has provided this detailed guidance in relation to these regulations.
Will the Government implement this in other healthcare settings?
When the announcement to mandate vaccinations in care homes was made, commentators expressed concern that there would be a mass exodus of staff. This at a time when there is already 100,000 vacancies in the care sector. Healthcare settings have already seen a reduction in staff as a result of Brexit, is compulsory vaccinations going to reduce this further?
We have previously set out the difficulties that companies would have in attempting to mandate vaccination in the workplace. However, arguments regarding health and safety concerns, or religious and/or ethical objections, will become more difficult to mount in the event that the government choose to mandate the use of the Covid-19 vaccine more generally amongst healthcare workers. Meaning companies will be able to justify their decision to enforce ‘no jab. No job’.
If you would like advise or assistance relating to any issues discussed in this article, please contact our team on 0207 388 1658 or email email@example.com.
Laura Pearce, Senior Solicitor