Compulsory vaccination in care settings: government introduces legislation

The government has introduced legislation to Parliament to make COVID vaccination compulsory in care settings. These regulations were passed by the House of Commons last week and by the House of Lords last night. The draft Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 can be found here.

The regulations cover England only. They are still in draft form at present but are expected to pass into law shortly.  They will come into force 16 weeks from the date they’re passed into law.

The regulations provide as follows:

• They amend the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 to require the registered person for nursing and personal care in care homes to ensure that, subject to certain exceptions, no one enters the care home premises unless they provide evidence that they have been vaccinated with a complete course of an authorised vaccine against COVID-19 (it remains to be seen where any autumn booster plan fits into this).
• The exceptions are where:
• The individual is a service user of the regulated activity in the premises
• The individual has provided evidence that satisfies the registered person that, for clinical reasons, they should not be vaccinated
• It is reasonably necessary for the person to provide emergency assistance in the premises
• It is reasonably necessary for the person to provide urgent maintenance assistance to the premises
• The person is a member of the emergency services in execution of their duties
• The person is a friend or relative of the service user visiting the service user
• The person is visiting a dying service user
• It is reasonably necessary for the person to provide comfort or support to a service user in relation to a service user’s bereavement following the death of a relative or friend; or
• The person is under the age of 18
• Where there is non-compliance, CQC could consider taking regulatory action, for example through the issuing of a warning notice.
• The regulations provide that the registered person can process vaccination status information but must still do so in a way that is consistent with data protection legislation.

The regulations build in a 16-week grace period to assist in the transition to the new rules, meaning that (depending on the exact date they are passed into law) the requirement to be fully vaccinated should apply from November 2021.

When the matter came before the House of Lords there were many concerns voiced regarding the fact that the operational guidance will not be available to care businesses until the end of July and the government’s failure to publish a full impact assessment. In the brief ‘impact statement’ published by the Department of Health and Social Care on Monday, it is estimated that the measures may lead to the loss of 40,000 workers (7% of the total workforce) within the 16 week period of grace. This is on top of the reported 112,000 vacancies the sector is currently struggling to fill.

The government has stated that it appreciates the impact of these measures on small businesses employing under 50 people may be greater and, to minimise this, the approach taken is to work with Skills for Care to ensure that local authorities and providers will have access to guidance and resources to support workforce capacity and resilience.

How Citation can help

Our HR & Employment Law experts will be drafting the appropriate policy documents as soon as the government guidance is published, so keep an eye on your inbox for more updates.

And if you’re a care service owner with questions about how this might affect your business, you can call our experts for advice on 0345 844 4848.