Guidance on compulsory vaccination in care home settings now available

We’ve been waiting ever since the government announced plans to introduce compulsory vaccination in care settings in June for further details of how these rules will operate. As of 4 August, these further details are now available, setting out how employees can prove their vaccination status, how to record vaccination and exemption statuses, the data protection implications, who is exempt from the legislation, and other key information.

Below we take you through a breakdown of this key information from the government’s 49-page operational guidance for compulsory vaccination in care.

What is changing?

From 11 November 2021, all care home workers, and anyone entering a care home, will need to be fully vaccinated unless they are exempt under the regulations. This requirement forms part of the fundamental standards and will be monitored and enforced in appropriate cases by CQC.

The rule only applies to people who go inside the care setting; therefore, anyone who is not entering the building doesn’t need to show their vaccination status.

Although checks may be carried out by other members of staff acting under the instruction of the registered person, it remains the responsibility of the registered person. In applying these rules, they should follow the guidance and the Code of Practice on the prevention and control of infections (which the government will be updating shortly).

How can employees show their vaccination status?

There are ongoing discussions on how the NHS COVID Pass service could be used by care homes and staff to check and demonstrate vaccination status but, in the meantime, the guidance sets out three ways an employee can evidence their vaccination status if they were vaccinated in England, namely:

  • the NHS app
  • the NHS website
  • the NHS COVID Pass letter

The individual’s NHS appointment card should not be used as proof of vaccination status.

NHS app – An individual’s vaccination status can be found within the NHS COVID Pass service of the NHS App. If employees need more information on the app and how to download it, they can find that here.

NHS website – If the employee would prefer to access the COVID Pass via the NHS website, they can do that here.

COVID Pass letter – An employee can request that their NHS COVID Pass letter is sent to them in the post by requesting this online via ‘Get your NHS COVID Pass’  or calling 119 (for those vaccinated in England only). The letter can take up to five working days to come through.

Individuals vaccinated in Scotland can find information on how to obtain a record of their vaccination status from here.

Individuals vaccinated in Wales can find similar information from here.

The government is still working on a solution on how individuals who have been vaccinated outside of the UK can evidence their vaccination status and will be issuing further guidance on this.

Recording vaccination and exemption status

The guidance requires the registered person to keep a record of:

  • the vaccination or exemption status of staff members and the date that the status was last checked.
  • the vaccination or exemption status of those entering the care home (unless exempt) and the date that the status was last checked.

The registered persons should only record whether the individual is medically exempt or not. They should not record the clinical reason behind the exemption.

For professional visitors, the guidance states that individuals only need to demonstrate vaccination status the first time they enter or register with the care home, and at that point, their vaccination status should be recorded on the care home’s system. All subsequent checks of that individual can then be carried out via the care home’s records, which will state the date and time the individual proved their status. However, if preferred, care homes can also decide to check more often.

Records should be checked regularly to ensure they are up to date and the registered person will be able to share these records with the CQC to show they have checked third-party medical exemptions.

The guidance reminds employers that they must process vaccination and medical exemption information in a way that is consistent with data protection legislation.

Please note: we’re currently working on a development that will enable vaccination status and medical exemption to be recorded securely within Atlas and we’ll be sending out an update as soon as this becomes available.

Data protection implications

Nothing in the new rules relieves care providers of their existing data protection responsibilities. The guidance recommends that providers review and update their existing data protection and privacy documentation and assessments. They should have a clear policy in place which details matters such as what will be recorded, how this information will be used, where it will be stored, who will have access to it, how long it will be retained, etc.

Do the rules apply to booster doses of the vaccination?

The rules don’t apply to booster doses at the moment, but the guidance ‘strongly advises’ managers to encourage workers to take up booster vaccines and leaves the door open for this requirement to be added to the regulations in the future.

When will people need to have received their first vaccination in order to be fully vaccinated by 11 November?

Employees will need to have received their first dose by 16 September 2021 if they are to be fully vaccinated by the time the regulations come into force.

Who is exempt under the regulations?

The policy does not apply to residents or anyone falling within the following categories:

  • they, for clinical reasons, should not be vaccinated (the individual is exempt for medical reasons)
  • it is reasonably necessary for the person to provide emergency assistance in the care home
  • it is reasonably necessary for the person to provide urgent maintenance assistance to the care home
  • the person is a member of the emergency services in execution of their duties
  • that a person is a friend or relative of the resident visiting the resident (this also includes unpaid carers or designated essential caregivers)
  • the person is visiting a resident who is dying
  • it is reasonably necessary for the person to provide comfort or support to a resident in relation to a resident’s bereavement following the death of a relative or friend
  • the person is under the age of 18
Medical exemption

This is the area that is likely to prove most problematic for employers dealing with employees who refuse to be vaccinated and, unfortunately, the guidance does not provide much clarity on this point. It states:

“There are a range of circumstances in which an exemption may be granted which will reflect the Green Book on Immunisation against infectious disease (COVID-19: the green book, chapter 14a) and clinical advice from the Joint Committee of Vaccination and Immunisation (JCVI). There will be a clear process for staff to follow if they think they may have a clinical reason to be exempt. This process will be aligned with certification for domestic events, exemptions from self-isolation for confirmed contacts and travel. Guidance for certification is being developed and we will add a link to this guidance here as soon as it’s published. We will be producing separate guidance for clinicians, which will align with guidance for vaccine certification in other public settings. This guidance will help clinicians to verify exemptions.”

The link to the relevant section of the Green Book can be found here but bear in mind that this is a reference publication intended for public health officials. Care providers will need to refer to the certification guidance for details of the medical exemption rules (we’ll be sending out an update as soon as this is published).

The guidance also contains advice to employees which sheds a little further light on how medical exemption will work in practice. It states: “If you are exempt, the registered person will not know the reason for your exemption, only the fact that you are exempt”. It goes on to say that there will be a clear process to follow if they think they may have a clinical reason to be exempt and guidance will be issued on this later (this will be covered in the certification guidance).

The guidance also tells employees that managers should do a risk assessment for those who are exempt from vaccination to evaluate the potential risk of transmission, and measures may be put in place to help reduce this risk - for example, by asking exempt members of staff to wear more or different PPE or considering a change to their duties.

Residents exemption

The rules do not apply to residents. However, they will apply to prospective residents and their families visiting care homes, and therefore the guidance urges care home managers to consider remote visits via video link for any prospective residents who are not vaccinated. The government will be monitoring the impact this has on prospective residents.

Residents’ family, friends and essential care givers exemption

This exemption covers residents’ friends, family (who also may be unpaid carers) and essential care givers.

The guidance says that it would be “unjustifiably detrimental to residents to deprive them of contact with, and care from, their loved ones.”

Emergency assistance exemption

This will apply if someone is entering the care home for emergency assistance for an incident in the care home itself or in a neighbouring building (for example, if they need access to respond to a fire).

The guidance states that it will be down to the registered person to use their professional judgement to decide whether a situation is an emergency to which this exemption applies. They must keep a log of all emergency situations during which people entered the home without showing proof of vaccination or exemption and should include details of the circumstances in this log.

The guidance gives the examples of members of the public assisting in the event of flood or fire, or social workers responding to immediate safeguarding concerns.

Emergency services exemption

This covers members of the emergency services entering the care home to execute their duties, such as members of the fire and rescue services, the police service and members of the health service attending for an emergency response.

Urgent maintenance work exemption

The rules do not apply to maintenance work being carried out outside the care home but it will cover individuals entering the care home to carry out maintenance work - unless that work is urgently needed “in the event of a risk to life or continuity of care”.

Managers must use their professional judgement to determine whether this exemption applies and must keep a log of any such incidents, including a short description of the event. The guidance gives various examples of when the exemption may apply, including:

  • failure of breakdown of the gas, electricity or water supply
  • a dangerous electrical fault
  • serious damage caused by fire, flood, storm or explosion
  • a burst water service
  • a serious roof leak
  • a gas leak
  • any fault or damage in the care home that makes the care home unsafe or insecure
  • a serious fault in a lift or staircase

Death or bereavement exemption

This exemption applies where someone is visiting a resident who is dying (in their last days of life) or they are providing comfort or support to a resident following the death of a relative or friend. This includes those performing spiritual rituals for a resident, but the exemption does not cover funeral directors and their staff. They will have to show proof of vaccination or exemption when entering the care home.

Under 18 exemption

This exemption applies to anyone aged under 18, but the guidance points out that while professionals under 18 visiting a care home will not need to show proof of vaccination status, they may be required to show proof of age.

All frontline health and care staff aged 16 and over are eligible for a vaccine, and the guidance states they should make sure they are fully vaccinated before they turn 18.

Guidance for employers

The guidance advises employers to have a written vaccination policy, which could cover issues such as:

  • whether staff over 18 are entitled to time off work (with or without pay) to be vaccinated or obtain evidence of medical exemption
  • the date by which employees will need to provide evidence of vaccination or exemption
  • any arrangements relating to leave if staff experience side effects from vaccination (the guidance suggests it may be preferable to avoid a large number of staff being vaccinated on a single day)
  • how data about vaccination or exemption will be processed
  • how any formal policies will apply to staff who cannot comply with the requirement
  • how vaccination requirements of new recruits and agency staff will be addressed
  • any equality issues that arise from complying with the regulations (see section on Equality Act 2010)

The guidance states that there may be a legal duty to consult where there is a recognised trade union or employee representatives in place, because: “any measures may affect the health and safety of staff. Where a trade union is recognised or employee representatives are in place, this may be the best forum to begin with. They can help with consulting, understanding and addressing any collective issues, and discussing practical and operational issues. Before and or after any collective engagement, it may be helpful to provide a written summary to staff. This can be used to explain the requirement and what it means for them. This may avoid misunderstanding about what is required, and what it means for staff.”

Even where trade unions or employee representatives are not in place, collective consultation obligations may be triggered if there is a change to contract terms (which the introduction of compulsory vaccination would be viewed as in most cases) which could result in 20 or more dismissals at one site within a 90-day period. If you believe that you may be facing that situation, you should seek advice on any potential collective consultation obligations.

After any group consultation, the guidance recommends that employers enter into “individual engagement and information gathering” to identify those who:
  • have been vaccinated or are medically exempt, or are under 18, and can evidence it
  • have been vaccinated or believe that they may be medically exempt, but cannot evidence it
  • have not yet been fully vaccinated but will arrange to be fully vaccinated before the regulations come into force
  • have not yet been fully vaccinated and are unlikely to be fully vaccinated in time li>
  • are over 18 and not medically exempt, but do not wish to be vaccinated

Employers are advised to explore any concerns raised by individuals and provide employees with a reasonable opportunity to be vaccinated or obtain evidence they are exempt before any formal action is taken. Employees should be made aware very clearly of the consequences of not being vaccinated without a medical exemption and the timescales the business will be working to.

Where staff are away from work - for example, on maternity leave or long-term sick leave - the employer should communicate with the employee to ensure they are aware of the requirements.

Dismissing employees who are not vaccinated and are not medically exempt

The guidance gives detailed information on how employers should deal with employees who refuse to be fully vaccinated and are not medically exempt. Employers are advised that in these circumstances they should explore all options, including redeployment into any alternative role where vaccination is not required, such as roles at a head office.

The guidance also suggests considering paid or unpaid leave for staff but recognises that this can’t be a long-term solution. It could be an option where the employee agrees to be vaccinated but this can’t be completed by the 11 November, or in cases where there is a delay in receiving confirmation of medical exemption.

If there are no alternatives, the employer will have to consider dismissal, but must at all times comply with “employment and equalities law and adhere to good employment practice”. In the case of establishing a fair reason for dismissal, the guidance identifies two potentially fair reasons, namely:

  • the employee cannot continue to work in their position without the employer contravening a duty or restriction imposed by or under an enactment, or
  • some other substantial reason of a kind as to justify the dismissal

Dismissals should be made with notice (or pay in lieu where appropriate).

If there is a potential alternative role which does not require vaccination but there is more than one candidate, the employer will need to consider how it fairly selects employees for redeployment or dismissal, and this should be done in an objective and non-discriminatory way.

Although not being vaccinated does not amount to misconduct, dishonestly providing false evidence of vaccination is misconduct (likely gross misconduct).

Key points to establishing a fair dismissal

To establish a fair dismissal, an employer should follow a fair procedure, and this would include:

  • consulting with the employee
  • warning the employee of the risk of dismissal if they do not prove they are vaccinated or exempt within specified timescales
  • giving the employee an opportunity to explain their circumstances and any reasons they should not be dismissed (this should be at a formal hearing)
  • allowing the employee the right to be accompanied to this hearing by a trade union representative or work colleague
  • taking and sharing notes of any formal meetings, to avoid misunderstandings or disputes about what was said
  • exploring alternatives to dismissal, for example redeployment opportunities where vaccination is not required
  • acting consistently where cases are alike, but also considering relevant differences between cases
  • deciding on an outcome and communicating the outcome to the employee
  • providing a right of appeal against dismissal

The guidance advises that care homes should cover in their vaccination policy the situation where a dismissed employee appeals against dismissal and completes a vaccination course or obtains a medical exemption after dismissal but before the appeal is heard. This should cover whether they will reinstate employees in these circumstances, and whether they will pay back pay on reinstatement. However, these cases should still be looked at on a case-by-case basis and we would recommend that you take advice in these circumstances.

Recruitment

Care home providers should notify prospective employees of the vaccination requirement at the start of the application process and should check vaccination status during the recruitment process. The guidance makes it clear that new recruits can only start work when they have provided evidence of their vaccination status or a medical exemption.

The rules also apply to anyone entering a care home for a job interview and therefore if someone intends to have the vaccination but is not yet vaccinated, the interview should take place outside of the care home or remotely (via video call or telephone).

If my employees want more information, where can I refer them to?
Where can staff get a vaccination?

Vaccinations can be booked online through the National Booking Service or by ringing 119.

People can also attend one of the hundreds of walk-in centres across the country without the need to book in advance (for details of your nearest centre, please click here.

What measures should be taken or considered where staff are exempt from vaccination?

The guidance states that the introduction of compulsory vaccination does not change the other measures in place to reduce the risk of transmission and care providers should continue to follow infection prevention and control measures, including the correct use of PPE. It advises “a risk assessment should be undertaken for those who are exempt from vaccination, to reduce risk of transmission.

This might include a change to their duties where such a change is appropriate. It should also be taken into account that those that are exempt from vaccination may also be in the clinically extremely vulnerable category”.

How Citation can help

We understand that this is a lot of information to process at an already fraught time in the industry. If you’re a care business owner with questions or concerns over how this will affect your business, you can speak to one of our experts by calling 0345 844 4848.

 

 

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