Reports of several care homes facing back lash over their compliance with new COVID rules have been all over the headlines and it looks as if legal action could be pending. Many care home workers are upset over the new law requiring all staff to be vaccinated against the virus. An open letter has been sent to the Health Secretary, Sajid Javid, calling for a judicial inquiry into the law, but where does that leave employers?
Although any legal proceedings would be against the Government itself, many care home owners are naturally worried about the news. The letter, from the Legal Advice Network, raises points about the legality of the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021, the vehicle used to impose the requirement for registered persons to refuse entry into a care home in England unless certain exemptions are met. One such exemption is the production of evidence to demonstrate that the person is fully vaccinated against Covid-19; this is the exemption that will apply to the care home’s workers. Without that evidence, or evidence of medical exemption from the vaccine, workers are unable to continue working inside the care home and must be redeployed or lose their job.
Mr Javid has been asked to explain the legal standing of the new regulations in the context of an existing law, namely the Public Health (Control of Disease) Act 1984 which, the letter says, prohibit a requirement for people to undergo medical treatment, including vaccinations.
Many companies have already taken initial steps to ensure that they are complying with the new rules, which they say has cost them both time and money. The added uncertainty that this potential legal action brings in terms of staffing is yet another complication that many business owners don’t need after such a difficult year. As it stands, any care home employees that are not vaccinated by 11th November 2021 could either lose their job or need to be redeployed within the business. This has made planning a nightmare for employers, who are unsure if they will have enough staff to cover the needed shifts.
As it stands, six in 10 care homes may be forced to let staff go if they have not been vaccinated by the Government’s deadline. Reports suggest that nearly a tenth of staff are yet to receive their first dose. An army of new staff will be needed to fill these roles, but it seems agencies are having a hard time recruiting people. Reversing the new rules would appear to solve this staffing headache and avoid the loss of valued members of the workforce but time is running out.
With rotas to plan and uncertainty over how many staff members will be able to work, many bosses - whilst potentially sharing their staff’s concerns about the vaccine - have been forced to go ahead as planned.
The ‘jab or job’ issue is one that divides opinion and there are strong feelings on both sides. Many employees across all industries have stated that they would feel uncomfortable working alongside those who haven’t been vaccinated, so a sudden U-turn on the rule may not be the best option.
Judicial proceedings take time and with the deadline of Nov 11th fast approaching, the anxiety and uncertainty many are feeling is completely understandable. If the regulations remain, business owners will have little time left to plan their next steps.
It is important for businesses to remember, whilst the Government can and may change the law on requiring employees to be vaccinated, it does not mean that employers will be exempt from following the rules on fair dismissal. Have conversations with your employees now to understand the reasons behind their decision to be/not to be vaccinated and ensure that you have explored all other options before proceeding down the dismissal route.
I would recommend that any care home owner who is uncertain as to how to proceed seeks advice. At BrightHR, we can talk through all your concerns and provide support 24 hours a day, 7 days a week to help guide you through this turbulent time. Our VaccTrak software is a great way for employers to simplify the process of knowing who is and isn’t vaccinated, reducing paperwork and saving you precious time. We’ve also opened our VaccTrak Lite package to all care homes free of charge, to help everyone navigate this issue as easily as possible.