As regulation requiring care workers to be vaccinated against Covid is set to be lifted from 15 March in England, care homes will need to carefully rethink their employment policies.
Regulations in England will revoke the requirement (opens a new window) that Care Quality Commission (CQC) registered persons (opens a new window) only permit those who are vaccinated against COVID-19, unless otherwise exempt, to be deployed for the provision of a CQC-regulated activity in health and/or social care, and to enter CQC registered care home premises.
The government justified the decision by noting that the population as a whole is now better protected against hospitalisation from COVID-19 thanks to the vaccine programme and by referring to a public consultation showing that 90% of respondents supported the removal of the legal requirement. The consultation received more than 90,000 responses from across the health and social care sector, as well as from members of the public, according to the government.
The mandatory vaccination rules that are now being scrapped only came into force for care home staff in November 2021. The policy had met significant resistance from some workers, and some experts warned that sacking those who did not comply would worsen the already serious staffing crisis in health and care services.
The government’s U-turn has many implications for care homes. Care providers will feel an impact on their resources from dealing with complaints/claims/grievances from dismissed and current employees as well as the work required to discontinue any current processes relating to the dismissal of any unvaccinated employees. The new regulation raises questions such as whether unvaccinated care workers who may have left their jobs could now return or if the current vaccination requirements should be kept in place despite the legal change. Anecdotally, care providers have already signalled to Lockton that their position will remain unchanged, noting that vaccinations are our best line of defence in the fight against COVID, allowing care homes to remain open for families to visit residents, and for keeping colleagues safe. Some insurers may also require that all carers are vaccinated notwithstanding the revocation of compulsory vaccinations.
Freedom of choice
Changes to the legislation do not mean that employers in this sector cannot dismiss staff or are discriminating by only recruiting fully vaccinated staff if they consider and can demonstrate that it is necessary for all staff to be fully vaccinated for health and safety reasons, such as to protect staff, visitors and the extremely clinically vulnerable residents, patients/service users. Companies will need to justify this with a minimum of a health and safety risk assessment and then deal with Covid-19 vaccinations as they would any other immunisation requirements such as hepatitis B, measles, mumps, rubella (MMR) and flu.
Employers will need to ensure they have a clear strategy and internal policies in place to balance management of infection control with the protection of employees’ human rights and equalities. This will be particularly important where employees refuse the vaccine on the grounds of protected characteristics such as pregnancy/medical grounds, race, religion/belief or disability.
Some care providers will be concerned about the impact on recruiting staff to this sector if they decide to keep vaccinations mandatory, as this sector already has a low retention rate and relies heavily on agency workers.
There has been some recent caselaw in Allette v Scarsdale Grange Nursing Home Limited (opens a new window) where the Tribunal considered whether a care home worker was unfairly dismissed following her refusal to be vaccinated against Covid-19. This was prior to the regulations requiring mandatory vaccination from November 2021. The decision made by the Tribunal found that the claimant had not been wrongfully dismissed as she was aware that her refusal to have the vaccination presented a risk to others within the care home environment and dismissal on the grounds of gross misconduct was construed to be a reasonable response from the care home and dismissal was therefore proportionate. Her concerns about the safety of the vaccine were considered to be an unsubstantiated belief, rather than a religious belief. This decision is not binding and plenty more cases are likely to be heard over the coming months but it’s helpful to have an initial steer on the Tribunal’s views of such cases especially without the legislation in place mandating vaccines.
Insurance and risk management recommendations:
Consider what action needs to be taken, such as amending existing employees’ contracts to incorporate any changes to their internal vaccine policy and amend/adopt a written vaccination policy. Annual boosters are likely to be needed to deal with COVID-19 mutations and the employer will not wish to have an annual task of “encouraging” take up. The policies should provide a stronger defence where employees are either redeployed or dismissed following a fair procedure but it is important to note, however, that in order to defend claims of unfair dismissal and discrimination, employers will still need to evidence that they have taken account of the reasons behind any refusals and where these are based on protected characteristics (e.g. a disability or medical condition which prevents vaccines) that they have taken proper account of these reasons in each individual case and have undertaken a fair process before dismissal.
Consider alternatives to dismissal where possible. This could involve measures such as moving employees or altering their roles, so they are not exposed to as much risk, nor expose others. Any concerns raised will need to be properly analysed and conclusions documented.
Continue to encourage employees to get vaccinated through effective communication and engagement with staff. Regulatory bodies will highlight the responsibilities of medical professionals to be vaccinated and the Government will update their code of practice relating to infection prevention and control.
If a care provider has dismissed some staff because of the mandatory vaccine regulations and selected staff in a fair and non-discriminatory manner, the exception to the usual rules prohibiting discrimination may be available because of the requirement of the Regulations that were in place at the time.
The recruitment process needs to be clear on the care provider’s vaccine requirements including agency contracts. Potential staffing or resourcing issues (inadequate number and quality of staff) to provide care will have an impact on claims and liability decisions. This could result in increased focus from the Regulators (CQC/HSE).
Consider how data relating to vaccination-status and any medical exemptions will be used in accordance with data protection legislation including the Data Protection Act and General Data Protection Regulation (GDPR).
Insurers are likely to favour risks where the majority of staff are vaccinated as this ultimately reduces the risks of claims for the insurers and shows effective risk management by the insured. This could be a positive selling point at renewal when remarketing risks and benefit the insured on policies where a Communicable Disease exclusion has been added such as with most of the Public Liability and Medical Malpractice policies for the health and social care sector.
Employment Practices Liability (EPL) insurers are likely to be concerned about the continuing stream of claims if the insured does not have a clear strategy and policies in place to deal with the issues surrounding staff vaccinations.
For further information, please contact:
Andrew Nicholson, Partner
T +44 (0) 20 7933 2336
Alex Titmarsh, Account Director
T +44 (0) 2079 331 375