From 11 November 2021, all care home workers will be required to be fully vaccinated against Covid-19, unless they are exempt under the regulations. The new guidance covers anyone entering to undertake care work. Workers must have received the full course of the vaccination.
The vaccine offers the best protection against the virus for staff and residents. It has been mandated because of this specific environment being deemed as high risk from the coronavirus.
Whilst it is legislation mandating this requirement, careful discussion and consideration must still be afforded to those employees who are hesitant to receive the vaccine. We would therefore recommend seeking HR advice in this situation.
Proof of Vaccination
Proof of vaccination status in England can be demonstrated either via the NHS app, or through the NHS website or by an official NHS COVID Pass letter. The NHS appointment card issued at the time of the vaccination given, does not count as evidence to having had the full vaccination, and at present, the Government are looking at how individuals who have had their vaccination abroad can evidence that is the case. For those living in Scotland, information on how to obtain proof of their vaccination status can be found via nhsinformscot.
Those who live in Scotland or Wales but work in a care home in England, must conform the regulations set in England and therefore evidence their full vaccination.
Whilst it is a legal requirement, careful discussion and consideration must still be afforded to those employees who are hesitant to receive the vaccine.
The Government is currently working on defining what evidence or process will be used by care homes and employees/3rd parties to prove and verify exemption from the vaccination.
The regulations require a nominated person in the care home who is responsible for ensuring that everyone who enters the premises is either vaccinated or exempt. The registered person will be the person registered with the CQC as a manager or service provider but can decide for another person to carry out certain duties to help the care home conform with the regulations.
Currently, the regulations do not include the requirement for employees to receive booster vaccinations, however, they may be incorporated into the regulations later.
However, despite this not being a legal requirement, the Government strongly encourages that booster vaccinations are taken when the opportunity arises. Considering this Government advice, it may be seen as a reasonable step, for an employer to mandate booster vaccinations. This is providing the business case for mandating COVID-19 vaccinations remains strong and objective, that the employer has exhausted all avenues in seeking to persuade individuals who may be hesitant in obtaining the booster, considered personal circumstances, and exhausted all other possible options, where they exist.
3rd parties entering the care home
It will be mandatory for 3rd party workers attending inside a care home to show proof that they have been fully vaccinated, or where they have not, this is due to a medical exemption. Those attending a care home but only attending to the outside of the premises, do not need to be vaccinated.
Urgent maintenance work
There may be occasions where maintenance workers are required to attend the inside of a care home to carry out urgent maintenance work. In this situation, the worker will not need to evidence their vaccination status. Under the regulations, urgent work is classed as that which is necessary in the event of a risk to life or continuity of care. The Government has provided examples of what this may cover, although these should not be seen as a definite list, and other instances may apply. The examples given include gas leaks, fault/damage in the home which makes it unsafe, burst water service and dangerous electrical faults.
As these are examples and not a full list, it is for each care home management team to determine whether a situation requires urgent maintenance work. As a result, each care home will be required to keep a log of all urgent maintenance work that resulted in people entering the premises without proving their COVID-19 status.
Frontline and healthcare staff who are over 16 years of age are eligible for the vaccine and should take the opportunity to receive it.
However, those young workers under the age of 18 years, who are visiting to undertake work on-site, do not need to evidence their vaccination status, instead, they must show proof of their age. Once they become 18, then they are required to evidence that they have had the full course of vaccination.
Volunteers entering a care home will also be required to show proof of their vaccination status unless they are under the age of 18. Those under 18 must show proof of their age.
As part of the recruitment process, all job applicants attending a care home in order to undertake a job interview must be able to demonstrate their vaccination status. In circumstances whereby the applicant has not had the opportunity to have received their second jab, then the interview must take place outside of the care home or conducted remotely.
New recruits who have had the full course of the COVID vaccination, or who are medically exempt from the requirement can work in a care home.
Proof can be given by one of three ways:
- The NHS app, where it is visible within the NHS COVID Pass service
- The NHS website, can provide the same information as contained in the NHS app.
- Non-digital solution – NHS COVID Pass Letter is available via post and can be obtained by either calling 119 or going online to the NHS website and requesting it.
An employee’s COVID status is special category data from a data protection perspective because it is their private medical information. The use of special category data must be fair, relevant, and necessary for a specific purpose. Since the Government has mandated vaccinations for care homes, it means that an employer will be lawfully able to justify the processing of their employee’s data. The data must only be used for the purpose the person whose data it is, would reasonably expect. It is important to ensure that employees clearly understand why it is you need to collect the data and what you are using it for. Having a COVID vaccination and testing policy will enable the business to clearly set out its data protection responsibilities, and justification for processing sensitive personal data. The management of COVID vaccination status must be in line with the Data Protection Act 2018 and UK GDPR.
Information to be recorded
When recording a person’s COVID vaccination or exemption status, a registered, nominated person responsible for checking should record the vaccination/exemption status of the staff member or 3rd party who is entering the building and the date of the check.
The medical reason for the exemption does not need to be required.
Individuals will only be required to demonstrate their status on the first occasion of entering the registered care home, however, it is encouraged that records are checked regularly to ensure the status remains up to date.
COVID secure workplace measures.
Even though workers will be required to have the vaccination to work in or enter a care home, everybody, not just those who are medically exempt from the regulations, should continue to operate covid secure measures as part of risk management. The risk assessment should always be under review and updated as necessary; this will continue even when the legislation has come into force.
Whilst it is hoped and strongly encouraged that everybody who can have the vaccination takes the opportunity when offered, there may be some individuals who are hesitant, and are so for personal and genuine reasons.
Given the legal requirement is to be vaccinated to work in a care home, failing to do so means that there can be significant implications for the contract of employment.
This situation has not been tested in the courts, but it is probably likely, that an Employment Tribunal would support a person taking the vaccination given the responsibility we all have in combatting COVID-19. However, it would still expect a reasonable employer to take certain actions before considering the implications for the ongoing sustainability of the employment contract. For example, a reasonable employer would:
- Exhaust all informal communications with the individual seeking to persuade them to take up the vaccination.
- Listen carefully and take seriously the employee’s reasons for not getting vaccinated hesitancy and seek to direct them to official sources of guidance and support so that they can seek further information that could see them reconsider their position.
- Clearly explain the business case for requiring they become vaccinated, and again, directing them to official sources of information to support and underpin the company’s position.
- Forewarn the employee of the implications on their employment of not becoming vaccinated.
- Follow a fair procedure when all avenues have been exhausted and a decision needs to be made on the ongoing employment of the employee.
For HR advice on the new legislation mandating vaccinations for care home workers, Contact Us.
Visit the Government’s Operational Guide for coronavirus (COVID-19) vaccination of people working or deployed in care homes.