New regulations making vaccinations compulsory for care home staff in England will come into force on 11 November 2021. This means that all staff working in registered care homes must be fully vaccinated against COVID-19 (i.e have received two doses of a vaccination) by 11 November 2021, unless they are exempt.
16 September 2021 was therefore the last date that care home workers could get their first dose, in order to be fully vaccinated by the November deadline.
Many umbrella companies already employ care staff, and with a growing likelihood that the care sector will turn to temporary staffing solutions in the wake of a staffing shortage, umbrella companies must be aware of the mandatory vaccination regime, the temporary self-certification scheme, the NHS COVID Pass and their implications.
The Department of Health and Social Care estimates that 40,000 of the 570,000 individuals employed in CQC-registered care homes will risk losing their employment (or assignment) on 11 November due to not being fully vaccinated. In addition, a report from Skills for Care found that there are currently over 100,000 unfilled posts in care homes. This demonstrates significant staffing issues in the care sector.
Mandatory vaccination regime in care homes
All CQC-registered care homes providing accommodation and nursing or personal care will have a registered manager. From 11 November 2021, those registered managers will be responsible for ensuring that no person enters their care home unless have been fully vaccinated or they are exempt from compulsory vaccination. Note that the regulations only apply to care homes in England.
The new mandatory vaccination requirement does not apply to residents, their relatives, essential care givers, essential maintenance workers, or emergency services. However, crucially for umbrella companies, the requirement does apply to agency staff, anyone else deployed in a care home, and any other professionals (including doctors and nurses) or tradespeople who enter the premises.
Strictly speaking, the obligation falls on the registered manager of the care home to satisfy themselves that all relevant individuals have been double-vaccinated or are exempt. Nonetheless, it is advisable for umbrella companies to familiarise themselves with the requirements and to provide any employees who will be working in care facilities with information on how this change in policy could affect them and their assignment.
Who is exempt from the requirement to be double-vaccinated?
The following individuals are exempt from the requirement to be double-vaccinated:
- receiving palliative care where vaccinations are not in their interest;
- with a learning disability or autism;
- with allergies or ‘medical contradictions’ to all COVID-19 vaccines or its ingredients;
- who had an adverse reaction to the first dose;
- with a short-term medical condition (though this is a time-limited exemption); and,
- who are pregnant, if they choose to (this is also time-limited).
What evidence does an employer or registered care home provider need to see if an individual asserts that they are exempt from the vaccination requirement?
On 15 September, the government released guidance to the care sector confirming that, for a temporary period until the new NHS COVID Pass system was launched, those who are exempt from being vaccinated could self-certify that they meet the medical exemption criteria. Individuals vaccinated against COVID-19 abroad could also self-certify.
The Department of Health and Social Care (DHSC) has produced a “self-certification form for people with medical exemptions” which individuals can sign to prove their exemption status and which employers and care home providers should accept for the time being.
However, the self-certification regime was only designed to be temporary pending the launch of the new NHS COVID Pass system. As the Pass was launched on 1 October, the expiration date of any self-certification form is 23 December (12 weeks later); from that date individuals will no longer be able to self-certify and will need to apply for official confirmation from their doctor, specialist clinician or midwife that they are medically exempt from the requirement to be vaccinated. If approved, their NHS COVID Pass can then be used to prove their status within England.
Implications for umbrella companies
If an employee refuses to be vaccinated or, following the expiry of their self-certification, refuses to obtain an NHS COVID Pass exemption, the registered manager of the care facility will refuse to allow the employee to continue in their work and therefore their assignment is likely to be terminated unless an alternative role in an unregulated setting is available.
Individuals with protected characteristics (e.g. disabled individuals, older individuals, or individuals with specific religious beliefs or moral objections) have legal protection where a practice or policy applies to all employees but disadvantages those with a protected characteristic, unless it can be justified.
Employees with certain protected characteristics may refuse or be unable to be vaccinated (for example on religious grounds or because of a health condition). If the employee is dismissed or loses their assignment as a result of this, they may seek to bring a claim of indirect discrimination or raise a grievance.
The legal requirement that care home staff must be vaccinated will be a strong justification for the termination of the assignment of an unvaccinated employee, however employers should deal with any grievances carefully, a proper written record of reasoning should be kept and the employee should be allowed the right of appeal.
This bulletin is for general guidance purposes only and should not be used for any other purpose. Brabners is a Limited Liability Partnership
