The government passed legislation on 22 July 2021 requiring CQC-regulated care homes in England to take steps from 11 November to ensure that those who enter their premises for workrelated purposes are fully vaccinated against COVID-19, unless they cannot be vaccinated for clinical reasons or are exempt.
This will apply to most people who enter the care home for work, including:
- Agency workers
- Service providers such as tradespeople, hairdressers, doctors, nurses and CQC inspectors
- Work experience students
- Job applicants attending an interview
Categories of worker who are exempt are restricted to emergency services personnel and otherwise those providing "emergency assistance", and those undertaking urgent maintenance work.
The government has published operational guidance on the new rules; and Acas has published advice to help employers to prepare for them, which includes tips on how to support staff to be fully vaccinated, and so retain them.
We would remind employers that whilst a failure to be fully vaccinated without a valid clinical reason will be a potentially fair reason for dismissing an employee with over two years' service, a dismissal must still be reasonable in all the circumstances, including that a fair procedure must be followed.
Acas make the point that, depending on the circumstances, employers might be able to consider other options than to dismiss staff who are not fully vaccinated as at 11 November.
They cite as examples that care homes might agree for such employees to:
- Do suitable alternative work outside the care home premises, for example in an office or another place where they do not need to be vaccinated; or
- Take short-term paid or unpaid leave or undertake training that can be done away from the workplace if they are waiting to complete their vaccinations or obtain proof of exemption.
A criticism of Acas' advice is that they state that:
"If the employer has explored all available options and if a staff member continues to refuse to get the vaccine then the worker could be subject to a disciplinary procedure."
However, failure to be vaccinated will not constitute misconduct, and so it will not be appropriate to apply a disciplinary procedure: the potentially fair reason to be relied on is statutory restriction. Acas is correct, though, to advise that a fair procedure will include offering the employee the right to appeal any decision; and that if an employer is considering action against an employee related to the issue of vaccination, including dismissal, it is a good idea for them to get legal advice.
Evidence of medical exemption
Until 24 December 2021, people working or volunteering in care homes who have a medical reason why they are unable to have a COVID-19 vaccine will be able to self-certify that they meet the medical exemption criteria. Details of how to self-certify are here. From 25 December 2021, those who are medically exempt will need to verify their status using the NHS COVID Pass in the same way as those who are fully vaccinated.
On 19 October 2021, the Department of Health and Social Care confirmed the procedure that care home workers in England should use to apply for this. Full details of the application procedure are set out in COVID-19 medical exemptions: proving you are unable to get vaccinated ("the Exemptions guidance").
This procedure applies, in fact, to any individual who is unable to be vaccinated for medical reasons, and is not limited to care home workers. For example, an employee can use it to evidence to their employer that they are exempt from selfisolating for 10 days if they are a close contact of somebody with a confirmed case of COVID-19.
To apply for an exemption, an individual must call the NHS COVID Pass service on 119 to ask for a medical exemption application form. It will not be possible to obtain this form from a GP. The possible reasons for medical exemption are limited. However, if eligible, the individual will receive an application form by post. The form must be returned to the GP or clinician specified for review. The individual is to receive the result of the application by post within two to three weeks.
The NHS COVID Pass will look and work the same for people with medical exemptions as it will for people who are fully vaccinated. It will not show that the user has a medical exemption. However, the individual will receive a confirmation letter which explains that they are unable to be vaccinated for medical reasons. The Exemptions guidance states that they must keep this letter and use it if they work or volunteer in a care home after 11 November 2021.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.