The UK government introduced new legislation that will require those working in care homes to be double vaccinated against coronavirus. This has been implemented through the Health and Social Care Act 2008 (Regulated Activities) (Amendment) that came into effect on the 11th November 2021. This regulation is applied to England only.
This change is to ensure that care homes are made safer for residents vulnerable to the virus. Care home safety has been a significant challenge during the pandemic due to residents being one of the most vulnerable groups at risk of serious illness or death from COVID-19.
Who will need the vaccination?
Anyone who enters a Care Quality Commission (CQC) registered care home must be vaccinated; this includes staff, agency workers and volunteers.
Those exempt do not have to be vaccinated, this includes:
- Residents or friends/relatives of the resident
- individuals providing emergency assistance
- individuals providing urgent maintenance assistance
- individuals visiting residents who are dying or offering bereavement support
- those under 18 years of age
- Medically or clinically exempt
The legislation does not grant exemption for those who object for religious of philosophical reasons.
How to check vaccination status?
It is the legal responsibility of the ‘registered person’ within each care home to check each person’s vaccination status and keep a record of them.
You can show proof of double vaccination status through the NHS COVID Pass App, NHS app or NHS COVID Pass letter.
Booster doses are not currently a requirement included in the regulations.
What happens if a member of staff refuses the vaccination?
Under the new legislation, an employee that refuses to be vaccinated may have to be dismissed by their employer. There are some limited alternative options, such as the employee having clinical reasons for not being vaccinated, and these should be considered carefully before moving to terminate the employee’s contract (if they have not already been considered during the 16 week grace period since 22 July 2021).
Can care homes only hire those who are vaccinated?
No. The vaccine will be mandatory for new employees unless they are exempt. So because some potential recruits may have clinical reasons for not taking the vaccine, employers should be careful with any selection process that excludes those who are unvaccinated, as this could put them at risk of disability discrimination.
What does this mean for the care sector?
It is clear that whilst the mandatory vaccinations will provide more protection for residents in care, it will also add a serious strain on the staffing issues already present in care homes.
This is a challenging issue. With close to 50,000 unvaccinated care workers at risk of losing their jobs, care homes are in danger of losing vital support for their residents.
This is an evolving area of the law and employers should keep a careful watch on the mandatory requirements moving forward.
Whilst not legally obligated to enforce the changes, Attorneys and Deputies should nonetheless be aware of legislative changes which may affect the care their clients receive in care homes.
How will this impact those who require care?
Mandatory vaccines for care home workers will ensure that care homes are made safer from COVID-19 for residents.
However please be assured that the vaccination is not mandatory for care home residents or family and friends who intend to visit the resident.
The new legislation does not extend to those who care for residents in private homes (at-home care).
Further information
If you are concerned about issues relating to a loved one who lacks capacity please get in touch with a member of our Private Client Team.
About the authors
Jemma Garside is a Senior Associate in the Private Client team specialising in Court of Protection work. Jemma’s practice involves supporting professional and lay deputies for individuals who do not have capacity to manage their property and financial affairs.
Katie O'Brien is a trainee solicitor at Kingsley Napley and is currently in her first seat in the Private Client team. Katie joined Kinglsey Napley as a first seat trainee in September 2021.
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