Consultation launched on mandating COVID-19 vaccine for care staff

To increase vaccine take-up, the Government is considering amending the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. This would mean that care home providers in England with at least one resident over the age of 65 can only use those staff who have received the COVID-19 vaccine (or those with a legitimate medical exemption) in line with government guidance.

The Social Care Working Group of the Scientific Advisory Group for Emergencies (SAGE) has advised that an uptake rate of 80% in staff and 90% in residents in each individual care home setting would be needed to provide a minimum level of protection against outbreaks of COVID-19. This is for a single dose against the current dominating variant.

As of 4 April 2021, 78.9% of all eligible workers in all older adult care homes had received at least their first vaccine. However, this masks significant variation at a regional, local and individual care home level. As of 8 April 2021, 89 local authorities have a staff vaccination rate under 80%, including all 32 London Boroughs, while 27 local authorities have a staff vaccination rate under 70%.

With this in mind, the Government has launched a consultation seeking views on a proposal to make COVID-19 vaccines a condition of deployment in older adult care homes. With a deadline for submitting comments of 21 May 2021, the consultation document is available via the Government’s website.

Amongst other things, the consultation is specifically seeking views on the best way for care home staff to prove to their employer that they have been vaccinated, as well as what an appropriate grace period would be before new and existing staff are required to be vaccinated.

HR implications

If the Government mandates the take-up of COVID-19 vaccines for care home staff, affected employers will need to carefully consider how it will affect their workforce. Whilst it can be argued that mandating the vaccine will leave care home staff with little to no choice but to be vaccinated when offered, there may still be some members of staff who refuse.

In this case, dismissal may be necessary on the grounds of statutory illegality if employers cannot reason with the employee. Statutory illegality occurs if the employee cannot continue working in their position without contravening a duty or restriction. However, in this instance, employers may be required to consider whether there are any other reasonable alternative positions to the patient-facing role the reluctant employee currently has – which would not put residents, or those working closely with residents, at risk of contracting the virus.

The intricacies of mandating the vaccine for care home staff will need to be carefully considered by the Government before affected employers can have some direction on how to deal with it. Further updates from the Government should therefore be followed for the final verdict on the matter; in the meantime, it is advisable that employers begin to prepare for the possibility of this becoming a reality within the care home sector.

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