Implementing “no jab, no job” in care homes – the latest guidance

18th August 2021

Implementing “no jab, no job” in care homes – the latest guidance

New laws passed on 30 July 2021 (which come into effect on 11 November 2021) place obligations on registered persons and service providers to prevent anyone from entering a CQC-registered care home unless they have received a full course of a vaccination against Covid-19, are medically exempt from vaccination or fall into one of five other exempt categories. Updated guidance was issued on 16 August 2021. Walker Morris Employment specialist Lucy Gordon considers what this means for registered persons and service providers and the action that needs to be taken now.

What has changed?

The new laws apply to all CQC-registered care homes (meaning the provision of accommodation together with nursing or personal care) and require registered persons to ensure that with effect from 11 November 2021, people are not permitted to enter indoor premises unless they are fully vaccinated or are exempt. There is a fine of up to £50,000 for each individual breach.

The changes are made in the context that nearly 14,000 care home residents have died of Covid-19 since the beginning of 2021. Public Health England estimates that between 11 and 12.5 million infections and around 35,000 deaths have been prevented since the start of the vaccination programme.

The rules apply not just to those who are employed in care homes, but also those who need to enter care homes either as part of their roles (such as CQC inspectors) or to provide services (such as cleaners, hairdressers and medical professionals).

There is a grace period of 16 weeks prior to 11 November 2021 for individuals to complete their full course of the vaccine. Anyone not fully vaccinated or exempt should not be permitted to enter a care home on or after 11 November 2021.

Who is exempt from the requirement?

• Those who for medical reasons cannot be vaccinated (“clinically exempt”);
• Anyone under the age of 18;
• Friends or relatives of care home residents;
• Members of the emergency services;
• Those providing urgent maintenance assistance where there is a risk to life or continuity of care; and
• Those visiting a resident who is dying.

The key dates

16 September 2021 – Last date for individuals to have their first jab so that they are fully vaccinated by 11 November 2021

11 November 2021 – The date the new rules come into force

What counts as satisfactory evidence to demonstrate vaccination status?

Employees and third parties who need to enter care homes will need to evidence one of the following:

• That they are under the age of 18, using, for example, a driving licence, passport or birth certificate;
• That they have received a full course of vaccination, using the NHS COVID Pass (available using the NHS app, the NHS website or in letter format); or
• That they are medically exempt from vaccination.

The current guidance (16 August 2021) states that guidance for certification of medical exemption for vaccination is currently being developed and will be available on www.gov.uk shortly.

Equally, further guidance is expected regarding how those vaccinated outside of the UK can prove their vaccination status.

Vaccination status needs to be evidenced on the first visit to the care home only.

What should registered persons do now?

The immediate steps to take are as follows:

1. Inform: Inform all existing staff of the requirement that will be in effect from 11 November 2021, and publicise how staff can access vaccination. Don’t forget to include those on family-related leave or sickness absence. Make it clear to staff that if they are not vaccinated by this date, and are not medically exempt, you may need to consider terminating their employment in their current role.
2. Audit: If not done so already, embark on a programme to establish which staff are already fully vaccinated and meet with non-vaccinated staff to understand the reasons why they are not yet vaccinated. If there are medical or religious reasons, or an employee is pregnant, breastfeeding or intending to become pregnant or start breastfeeding, we recommend that care is taken and legal advice sought regarding how best to manage these situations. There are no exemptions on the grounds of religious belief or family planning but employers could be at risk of discrimination claims if these situations are not handled carefully.
3. Recruitment: Amend recruitment documentation and processes to make it clear that new employees will be required to comply with the new requirements. The rules will apply to those attending care homes for interviews if held in person.
4. Checkpoints: Decide on physical checkpoints in the care home – will there be one central checkpoint or several for different buildings? How will these be manned? Who will carry out the day-to-day checks? Do they need training on what to look for or how to refuse entry?
5. Record-keeping: Devise a method of recording the vaccination status of employees and those entering the care home. This must include their vaccination status or exemption status (there is no requirement to record the clinical reason behind any medical exemption) and the date their status was checked.
6. Third parties: Consider including terms in contracts with third parties requiring them to ensure that staff sent to the care home will comply with the new requirements. This will not remove the requirement to conduct a physical check on arrival, but should give greater comfort to the registered provider that the third party will not send staff who cannot meet the requirements.
7. Policy: Consider creating a vaccination policy to cover issues such as time off for vaccination appointments and pay in the event of side-effects from the vaccine.
8. Data protection: Review and update data protection impact assessments, privacy notices and policy documents regarding, for example, who will have access to the records, where and how they are stored.
9. Notice: Check contracts of employment regarding notice provisions in the event that employees refuse to be vaccinated and cannot be redeployed.

What if an employee refuses to be vaccinated and is not medically exempt?

If, ultimately, employers are left with employees refusing to consent to a vaccine after the grace period expires, they will be required to consider re-deployment to other roles before considering dismissal, albeit that available roles are likely to be rare. If no such re-deployment is available, employers need to ensure that they follow a fair process, and consider on a case by case basis whether it is reasonable in all of the circumstances to dismiss for “some other substantial reason”. For example, although the guidance is in favour of pregnant employees receiving the vaccine, depending on the timescales involved, it could be reasonable to agree a period of paid or unpaid leave for an employee due to go on maternity leave imminently, if they intend to have the vaccine after the birth, rather than proceeding to dismiss.

Employees would receive notice, and perhaps outstanding holiday pay, but no other termination payments, such as a redundancy payment.

To date, most objections appear to be due to fears about the safety of the vaccine rather than for religious or other reasons. Employers may therefore want to consider assisting employees to obtain fact-based information about vaccines to help inform their decision-making.

How we can help

At Walker Morris, we have specialist lawyers in our Employment, Regulatory & Compliance and Commercial teams who are experienced in advising on issues in the healthcare sector. We can help you with queries about the new rules, putting new policies and procedures in place, how to amend terms and conditions with third parties and how to ensure that you do not fall foul of data protection requirements. Please get in touch.