No jab, no job: the clock is ticking

In the July edition of CM Joanne Moseley, associate and practice development lawyer in the employment team at Irwin Mitchell, explained what mandatory vaccinations would mean for care providers and their staff. Here, she provides an update on how things are developing.

New legislation comes into force on Thursday 11 November 2021 that requires all adult care home staff to be fully vaccinated against Covid-19 unless they are medically exempt. Care homes have around 14 weeks left of the grace period to set up systems to check and record the vaccination status of their staff and, to consult with and redeploy or dismiss those who will not comply.

In reality, care homes only have until 16 September to persuade existing members of staff to have their first vaccination. This is because everyone working in a care home must be fully vaccinated by 11 November. There is a delay between the first and the second vaccination (which the government has assumed is just over six weeks) and no-one is considered to be fully vaccinated until two weeks from the date of their second vaccination.

The government has published operational guidance to help you prepare for the change and an impact statement which estimates the potential size of the workforce who may not have been vaccinated by the end of the grace period.

The impact statement demonstrates the scale of the problem. It estimates that 7% of the workforce may be unvaccinated by the end of the grace period, equating to around 40,000 workers. But it acknowledges that it could affect as many as 70,000 care workers.

Cash-strapped

It estimates that the cost of replacing workers who do not meet the vaccine requirements is around £2,500 per worker. That figure is based on a single small adult social care provider that employs 20 full-time equivalent care workers and recruits six over the course of 12 months. That is a huge amount of money for a sector that is already cash strapped and struggling to fill existing staff vacancies.

The government expects all registered care-homes to take ‘reasonable steps’ to cover staff shortfalls in the short term using bank or agency staff. If that option is not available to you, you will need to alert your local authority and find out if they can offer assistance. If your staffing levels affect your ability to operate the care home safely, you must notify the CQC.

The person who is registered with the CQC as a manager or service provider of your home is legally responsible for checking that your staff and job candidates have been vaccinated or are exempt.

The government still has not provided clear guidance on who will be medically exempt. It says that exemptions will reflect those included in the Green Book (which provides information for public health professionals on immunisation).

It states there are ‘very few individuals who cannot receive the … Covid-19 vaccines’ and that only those who have had a previous systemic allergic reaction to the vaccine or any component in it should not be given the vaccine (or a second dose).

Risk assessment

What we do know is that anyone claiming the exemption will need to prove this by producing a letter/certificate from a medical professional. The government has said it will put in place a clear process for staff to follow if they think they have a clinical reason to be exempt. It’s also developing guidance for certification which will be added to the operational guidance.

You will have to undertake a specific risk assessment for anyone who is exempt to reduce the risk of transmission. This might include a change to their duties.

The manager will have to keep a record of the vaccination status of staff members (and any other visitors to the care-home who are not otherwise exempt) and the date they last checked it. They will need to record anyone who is medically exempt but should not specify the reasons for this as you do not need that information.

The guidance states care homes cannot rely on someone’s NHS appointment card to verify their vaccination status. The government are considering how the NHS Covid Pass service could be used to check and verify vaccine status. In the interim, you can rely on the NHS app, the existing online Covid Pass service or by checking an individual’s NHS Covid Pass letter.

Data

Information about who has or has not been vaccinated will constitute sensitive personal health data.

Care homes must comply with GDPR rules on processing special category data, which means you will have to identify the lawful basis you are relying on for monitoring, who has access to the data; how long you will retain the data; how the data is stored; whether any privacy information needs updating; whether any data protection impact assessment requires updating; and whether any appropriate policy documents also need to be updated.

If you have not already started to collect vaccine data about your staff, you will need to start soon and explain to them why you need it. Then you will need to try and persuade those who do not want the vaccine (as opposed to those who cannot have it) to be vaccinated and the deadlines that apply.

There is lots of misinformation about the vaccines on social media and you should signpost where they can find reliable guidance. The government has published a range of resources with information about the vaccine that can support these difficult conversations. These are available in 19 different languages and links to them are included in the operational guidance.

You will have to warn anyone who refuses to be vaccinated they may lose their job. More information about this is available in our previous article.