Clock ticking on mandatory vaccination: key steps to take now
28 Jul, 2021
From one of SCA's Commercial Partners, Royds Withy King.
On 22 July 2021, the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (the “Regulations”) became law, introducing a requirement for all care home staff to be fully vaccinated against Covid-19.
The Regulations provide for a 16-week grace period, with the requirement coming into effect on 11 November 2021.
Government impact assessment
The Government estimates that 40,000 care staff will be dismissed for refusing to be vaccinated. However, it acknowledges that it could be up to 70,000 staff. It also estimates that associated recruitment costs will be £100 million, although it is unlikely that there are sufficient numbers of people to recruit into the vacant roles.
Key steps to take now
The initial steps you need to take are as follows:
Confirm whether the new rules apply to your business
The Regulations apply to all CQC registered providers of accommodation for persons who require nursing or personal care. It is not limited to older peoples care homes.
Identify which staff are required to be vaccinated
All persons who enter a care home, regardless of their role, must be vaccinated, unless they are exempt. The requirement will apply to staff, agency workers, volunteers and job applicants. It also applies to visiting professionals but that aspect is not covered by this update.
Staff who do not enter the care home (for example head office staff who are not required to visit the homes) are not in scope, neither are staff who only work outdoors. If you plan to make the requirement mandatory for those staff – take specialist employment law advice.
Consider whether any staff are exempt
Staff will be exempt if they provide evidence of “clinical reasons” for not being vaccinated. Further detail will be included in DHSC Guidance; however, we think that this will only include an indicative list and exemption will ultimately be a matter of clinical judgment. Clarity is urgently required on the process for obtaining exemption status.
Staff are also exempt if they are under the age of 18.
Plan your process
It is imperative that you carefully plan the process of informing, engaging and consulting with staff and any subsequent dismissal process to minimise the risk of dismissals and unfair dismissal claims. We can provide clear, practical guidance on the process and options which will get you off on the right footing, so please do get in touch if you need support.
Identify key dates and timeline
You have a short amount of time to implement the process fairly and give notice of dismissal to staff who refuse to be vaccinated and are not exempt. Be aware of the following key dates:
22 July 2021: Regulations became law
19 August 2021: Deadline for dismissal for employee with 12 weeks’ notice, to avoid payment in lieu of notice costs.
16 September 2021: Last date for first vaccine if employee is to be fully vaccinated by 11 November 2021 (this assumes an 8 week period between jabs, but it may be possible to get the second jabs as early as 6 weeks after the first).
11 November 2021: No staff can enter a care home unless fully vaccinated or exempt.
New starters: update recruitment documentation and contracts
You will need to update job ads, application forms, interview questions, offer letters and contracts of employment to reflect the new requirement. We offer Mandatory Vaccination Recruitment Packs to cover recruitment pre-and post-11 November 2021 for a fixed fee of £400 plus VAT. Please get in touch for more information.
Await DHSC Guidance
The Guidance is due to be published at the end of July and will hopefully provide much needed clarity on complying with the Regulations.
We can help
You need to act quickly and we can support you with implementation, including:
Mandatory Vaccination Recruitment Packs
Fixed fee advice on the process and how to avoid risk areas
Template correspondence with staff