COVID-19 Vaccination for care home workers – 2022 update

At present, it remains the situation since 11th November 2021, that employees in care homes in England were required to be fully vaccinated against COVID-19 under the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (referred to in this article as “the Regulations”).

Anyone entering a Care Quality Commission (CQC) care home must provide either:

• an NHS COVID pass showing they have received a complete course (two doses) of an approved COVID-19 vaccination, or
• evidence of a medical reason why they should not be vaccinated.

If care homes do not follow these Regulations, they can be prosecuted by the CQC.

Since this article was first published on Monday 28th February 2022, the government has made the decision to scrap regulations requiring care workers to be vaccinated from 15th March in England. Read more here. However, much of the below information remains helpful to care organisations.

Since the introduction of these regulations on 11th November 2021, on Monday 31st January 2022 the Health Secretary Sajid Javid announced in the House of Commons that following the return to Plan A restrictions in England on 27th January 2022, the government should revisit the balance of risks and opportunities that guided their original decision last year to implement mandatory vaccinations in the care sector.

While vaccination remains, in the government’s opinion, the countries very best line of defence against COVID-19, the Health Secretary stated that he now believes that it is no longer proportionate to require vaccinations as a condition of employment in CQC care homes in England, the NHS and other CQC registered healthcare settings.

Following this announcement, the government then entered in to a 1-week period of consultation from 9th February 2022 to 16th February 2022.

Update: Since this article was first published on Monday 28th February 2022, the government has made the decision to scrap regulations requiring care workers to be vaccinated from 15th March in England. However, some of the information below remains useful to care organisations.

Should the government vote yes to repeal the regulations, this would mean that there would no longer be a regulatory requirement for COVID-19 vaccinations to be a condition of employment for those working in CQC care homes in England, the NHS and other CQC registered healthcare settings.

At present we do not know when a decision will be announced by the government, or if the government vote yes to the repeal what date the regulations may look to be repealed from.

Update: Since this article was first published on Monday 28th February 2022, the government has made the decision to scrap regulations requiring care workers to be vaccinated from 15th March in England. However, some of the information below remains useful to care organisations.

For employees who have already been vaccinated, there will be no change to their ongoing employment with the company if the regulations are repealed. If the government offer care sector employees an option for further vaccinations, or boosters, the decision to take up this offer will remain the individual choice of each employee.

It is our recommendation that all ongoing consultations regarding vaccination status are paused for the time being, until the government confirm whether or not the regulations will be repealed.

We are hopeful that once the government confirms their final vote, further guidance will be published by the government to assist care homes with situations such as this.

For now, it is our recommendation that no dismissal outcomes should be issued to those currently undergoing through consultation for being in breach of the current regulations. We recommend all decisions like this are paused, until the government has confirmed the outcome of their consultations.

Ex-employees who have been dismissed already, on the grounds of being in breach of these statutory regulations can be contacted to notify them of this change in regulations, at the point the regulations are repealed.

Prior to considering whether to bring back any ex-employees, it is important to first ensure the company performs an impact assessment and risk assessment of any roles to cover all remaining health and safety considerations and perspectives which will still need to be take in to account first.

The risk assessment will need to factor in any potential risk of bringing back into the workplace any ex-employees who remain unvaccinated, and how any impact this can be reduced to protect vulnerable service users.

Having risk assessed the situation, the next step would then be to determine what (if any) offers of re-engagement the company could potentially make to any ex-employees who have already been dismissed on the grounds of being in breach of these statutory regulations at the time the regulations were in place.

The company is under no obligation of make offers of re-engagement to ex-employees who were at the time dismissed for being in breach of these regulations.

Any offers of reengagement would be dependent on the company having vacancies to offer at that time.

Where there are vacancies to offer, the company may have more applicants than it has vacancies, which is something which will need to be factored into any recruitment process. Where this situation occurs, the company will need to be honest with any applicants about this and explain there is a limited number of vacancies which means some applicants may be unsuccessful in their applications due to this reason.

A fair and suitable interview process would need to be undertaken, with special consideration to ensure there can be no potential discrimination claims arising through the recruitment process as standard.

Ex-employees previous service with the company can be taken into consideration during the recruitment and subsequent interview process, but this criterion should not mean the candidate will receive a guaranteed automatic offer of employment.

Where a re-engagement offer is made, it is important the ex-employee knows that no previous period of employment will be recognised or counted towards this new period of service.

Where the company has no vacancies to offer to ex-employees, or new candidates, at this time the company is not obliged to create any vacancies.

The company can simply advise ex-employees of the change in the regulations and notify them at this time there are no current vacancies in the company, however they are always welcome to apply for any vacancies as normal upon a vacancy being advertised.

It is important to remember that any employees who are offered new positions are being engaged into a new role, rather than reinstatement which is a situation where the employer overturns the employee’s original dismissal.

As such a re-engagement offer means their original reason of dismissal will still stand, and they will not be entitled to receive any salary lost between their dismissal date and re-engagement date.

The offer of re-engagement also means they will begin working under a new employment contract, with a new continuous service date and the terms of this contract may differ to their previous contract.

If the government chose to repeal the regulations, this would mean there are no legal or regulatory requirements for employees working in CQC care homes in England to be fully vaccinated as a condition of their employment.

We understand that some care homes may still wish to enforce this policy, not as a regulatory requirement but as a company policy.

It will be the decision of each employer to implement a policy of this nature, however a policy of this nature will need to be carefully worded and thought through as there are some very important challenges which will arise with implementing a policy of this nature, for which some examples are set out below:

• Changing terms and conditions of employment – In order to change the terms and conditions of employment for existing employees, the company would need to enter into a period of consultation known as “variation to terms and conditions”. Through this consultation process there is a chance employees could refuse to agree to this change to their contract, which could lead to the company having to dismiss them with notice pay and offering re-engagement on the new terms. Those who refuse any re-engagement offers following a variation to terms process could seek to try and claim unfair dismissal.
• Changes to acceptable exemption reasons – The previous regulations only accepted clinical reasons as valid exemptions for not receiving the vaccinations and made clear that religious or philosophical reasons where not accepted. If the regulations are repealed and replaced with a company policy, this would mean that previously excluded exemption reasons such as religious or philosophical reasons would now be relevant and would apply in line with the Equality Act 2010.
• Potential for discrimination claims – There is the possibility of a company policy such as this being deemed to be discriminatory, if applied to everyone in the company equally and enforced with dismissals occurring for those found to be in breach of this policy. As with the original regulations, a period of consultation would need to be entered in to with employees to understand why they are refusing to have the vaccinations and a consideration of what other measures could be taken instead to avoid dismissal would need to be carefully considered.

For example, if an employee is an ethical vegan that is a philosophical belief which may prevent them from having their COVID-19 vaccinations as they are tested on animals as part of the scientific medical development process.

As vaccination status is classed as medical records, this information would need to have been collected in line with Article 9 (1) (Processing of special categories of personal data). Organisations must ensure that this information is held with appropriate technical measures in place , this means that data is held securely and only accessed by authorised personnel. If this information is not stated as being processed within the organisation’s privacy notice and there is no lawful basis for the processing, you must ensure that this information is not processed until clarity has been received on whether this information is legally required or not.

Employer’s can ask for this information if they are explicit in the purpose of collecting this information and that this purpose is covered in their privacy notice. They will also need to ensure that vaccination or medical exemption is collected in line with Article 9 (1) of UK GDPR law. Organisations can complete a Data Protection impact Assessment (DPIA) which will highlight any risks associated with the processing of this data and enable organisations the ability to minimise these risks as early as possible.

A more common question would be ‘do employers have a lawful basis to collect medical/exemption information’? This means do they have a reason to process the data and are not holding the information ‘just in case’ or ‘because it’s nice to have’. If an employer is reviewing the recruitment process and looking at mandatorily asking for vaccination status, when is the best time to ask for that information? Is it point of application for the job or when the candidate is successful? This may lead to data being held for longer than necessary as part of the recruitment process. Once this process is defined, each employer must also decide a lawful basis as to why they have asked for this information. This could be as the employee may be engaging with vulnerable individuals or that staff members may be vulnerable also. It may be in the employer’s interests to only process vaccination status/medical exemption when a candidate is successful, this is due to the increase of data that you will be processing on individuals where they may not be successful and have already processed their vaccination status.

All individuals whose vaccination data would be processed as part of company policy must be aware of this before the processing occurs. This would require an update to your privacy notice or policy to inform individuals what type of additional information will be required and the purpose of the processing. The information must only be processed for the purpose as agreed by the organisation and once no longer required should be deleted. Whilst the information is held by the organisation, it would need to be processed securely, along with being held in a secure system or document and restricted access only available to those authorised.

Where additional personal or special category data is going to be processed, all individuals whose data will be processed as part of this process must be informed by way of a privacy notice/link to the privacy notice at the collection point of the data. That way all employees will be aware as to why they have been asked for this data. Where any necessary changes to the privacy notice are planned, all employees must be informed of the changes. This would also count when any annual amendments are made to the privacy notice and an update email would need to be sent to all affected individuals.

It is really key to remember that just because you think you need this information it isn’t always the case. Ensure there is a business purpose for your data processing, ask yourself what is the end goal and what is the minimum information required in order to reach this goal. It is also important to remember that any personal data relating to an individual (inclusive of vaccination status) must be up to date and accurate. You will need to be mindful where employees have had additional doses and how you intend on requesting this information on an individual basis and how often you will ask for this information.

You will also need to consider where an individual submits a SAR and requests their vaccination status as part of this request, Would you be happy that the information you are storing is accurate and up to date? How easy would it be for you to fulfil this request?

One final point to add, Whilst you are processing additional personal and special category data, comes an added risk of potential data breach. To help evade this, it is important to minimise the information to what you need for the purpose of the processing only, ensure that it is stored securely during the time that you are processing it and that you maintain the information to guarantee that you hold the most up to date vaccination information.

Current situation with COVID-19 cases – In any event of an employment tribunal claim, the tribunal will seek to assess the situation in England at this time around COVID-19. Given the scale back of restrictions to Plan A on 27th January 2022, the proposal to remove all restrictions at the end of February 2022 and the governments own change of direction for mandatory vaccinations in care homes, this does lend itself to the argument that at this present time the government are emphasising the reduction in the impact of the pandemic.

Dismissals arising out of the application of this company policy – Should any employee be dismissed by a care home for not following their company policy of mandatory vaccinations, the dismissal itself will still need to be deemed fair by a tribunal and will still need to fall within the band of reasonable responses.

In order to do this, the care home at the very least will have to have tangible evidence to show things such as:

• Why vaccinations were imperative to the safety of the residents, employees, and visitors of the care home at that point in time.
• That a full consultation process had taken place with the employee.
• What that the employees’ reasons for refusal to be vaccinated were.
• How the employees’ reasons had been fully considered.
• How alternative deployment opportunities where reviewed and considered as a resort to avoid dismissal.
• How risk assessments were completed which show that other health and safety measures, such as PPE, hand washing, cleaning, laundry management etc where not enough to contain the spread of the virus within the care home at that time.