30 July, 2021
The Government has now passed legislation mandatory for care home staff, volunteers and certain other groups entering the care home (subject to certain exemptions).
These provisions have now come into force meaning there will be a 16-week grace period from when the regulations are made to when they come into force on 16/11/2021 to enable staff who haven't been vaccinated to take up the vaccine.
The new legislation means that from 16/11/2021 anyone working in a CQC-registered care home in England for residents requiring nursing or personal care must have 2 doses of a COVID-19 vaccine unless they have a clinical medical exemption. Since the legislation has now been passed by Parliament it will become a mandatory, legal requirement for care home workers to become vaccinated on 16/11/2021.
Employers should start to think about how this could affect your business and the subsequent action that may need to be taken, such as amending existing employees terms and conditions of employment to incorporate the legal requirement.
By changing the terms and conditions of individual employees, you will need to consult with and seek agreement from each employee to vary the contract of employment.
There is an exemption for staff who are not able to have the vaccine for clinical reasons, however importantly this does not cover religious or philosophical objections.
As there is now a legal requirement for employees to be vaccinated, it will not be possible subject to any exemptions, for employees to remain employed unless they are vaccinated. Employers may therefore be in the position of having to dismiss staff members who are unwilling to be vaccinated without a clinical exemption.
Consideration will also need to be taken in respect of any prospective employees who will also be legally required to take the vaccination.
There is a 16 week grace period to allow employers to implement these changes. Whilst this may seem like a long period, as dismissal may be required for some unvaccinated employees and some may have 12 week notice periods this doesn't leave much time for employers to start to take action.
There is an exemption for members of staff who have clinical reasons that they cannot be vaccinated. Therefore work should be done to determine what staff members have not been vaccinated and for those that haven't, if there is a clinical reason for them not being vaccinated. If they have a clinical reason then you may need to consider if you need evidence of this clinical exemption.
Once you have determined the members of staff who are not vaccinated and do not have clinical exemptions you next need to determine if you have roles within your organisation that unvaccinated employees can do which will not put them in breach of the new rules. This is because despite the legislation, the Equality Act 2010, still may protect members of staff who do not want to be vaccinated for religious or philosophical reasons and so you will need to show you have taken all available steps to avoid those staff members suffering any detriment such as dismissal.
Employers should meet with these employees to understand why they have not received the vaccine and why they are reluctant and discuss what would happen if they don't take the vaccine in respect of their roles. If there is hesitancy it could be worth getting in speakers to deal with any concerns these staff members have.
Employers should also encourage and support their staff by making it as easy as possible for employees to get vaccinated by for example, offering paid time off to attend vaccination appointments. Employers Covid policy should clearly explain and communicate your approach, along with the terms of any incentives offered.
Ultimately if employees still refuse to be vaccinated then, provided there are no alternative roles, you may need to consider dismissal. This would likely be little used reason for dismissal of statutory restriction and employees would still be entitled to their notice or a payment in lieu of notice. However dismissals should be the last resort and actions should be taken to encourage employees to get vaccinated or look at alternative roles to avoid dismissals.
For more information contact Amy Stokes in our Employment & HR department via email or phone on 0333 207 1157. Alternatively send any question through to Forbes Solicitors via our online Contact Form.