Back in April 2021, the Government started a consultation on the possibility of making COVID-19 vaccinations compulsory for those who work in certain workplaces, including care homes.
Although there is some difference in opinion amongst scientists, SAGE considers that at least 80%-90% of residents and staff need to be vaccinated in order to reach herd immunity in care homes. At the time of writing, many of the care homes across the country are significantly under this threshold, with workers significantly contributing to this problem.
As a result, there is concern amongst the Government that “at risk” locations such as care homes may not be able to withstand a local outbreak of COVID-19.
Last month, the Government published Regulations in Parliament, in which provision has been made to require members of staff in registered care homes to be fully vaccinated unless they are exempt. The Regulations were approved on 13th July 2021 and will become law after a 16-week grace period, which allows everyone sufficient opportunity to get both doses of the COVID-19 vaccine.
This change in the law means that anyone who is employed by a care home must be fully vaccinated, regardless of their role unless they are exempt. The requirement also extends to any professional who visits a care home. As such, the requirement to be fully vaccinated will extend far beyond healthcare workers, but also to visiting tradespeople and inspectors.
Although the new Regulations will not become law for some time, employers should start considering the impacts of compulsory vaccinations, including the possibility that this may be extended to additional workplaces in the future. In particular, employers may need to consider the possibility of disciplining or dismissing employees if they fail to comply. Furthermore employers may need to consult and agree changes to an employee’s Contract of Employment in order to ensure compulsory vaccination is a condition of employment.
Public Health England is actively encouraging employers to encourage their members of staff to get vaccinated. Initiatives include nominating champions within the workplace to promote and encourage vaccinations, signposting members of staff to experts if they require further advice, as well as being flexible in facilitating individuals to get vaccinated, e.g. during working hours.
It is clear the introduction of mandatory vaccinations in the care sector will have a direct impact on compulsory vaccinations in the private sector. Some private organisations are already making it clear to new applicants during the recruitment process that having a COVID-19 vaccination is a condition of employment.
The Government has not legislated for mandatory vaccinations for all workplaces, and any such change would require primary legislation. However employers may need to keep an open mind on such a situation, especially if the country was to experience a further outbreak of COVID-19 or if there is not sufficient herd immunity in the community.
However employers must be cautious. There are numerous legal issues which could arise including claims of constructive dismissal, discrimination, breaches of human rights, as well as data protection implications. Businesses must therefore seek legal advice before embarking upon any significant changes, to ensure they are acting legitimately and lawfully.
For further advice and assistance, please do not hesitate to contact Sally Morris on 01905 610410 or at sally.morris@mfgsolicitors.com.
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