The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (the “Regulations”), which make it mandatory for those working in care homes to have the Covid-19 vaccination, have now been made and come into force on 11 November 2021 (See: https://www.legislation.gov.uk/uksi/2021/891/made).
Key points from the Regulations include:
- “Care home” is defined as any home which provides accommodation together with nursing or personal care for any person who is or has been ill (including mental disorder), is disabled or infirm, or who has a past or present dependence on drugs or alcohol. The Regulations do not cover senior living or extra care facilities.
- The Regulations appear to have widened the scope of medical exemptions, which now encompasses “clinical reasons”. This was not referenced in the original consultation response which instead referred to allergies or conditions listed in the Green Book. Further guidance on medical exemptions is expected to be published by the government.
- A full impact assessment has not been published, but a preliminary Impact Statement is available (See: https://www.gov.uk/government/consultations/making-vaccination-a-condition-of-deployment-in-older-adult-care-homes/outcome/statement-of-impact-the-health-and-social-care-act-2008-regulated-activities-amendment-coronavirus-regulations-2021).
- The Impact Statement estimates that 40,000 current members of the workforce (out of around 570,000 working in CQC-registered care homes) may choose not to take up the vaccine before the end of the 16 week grace period. Employers will need to consider how to manage individuals who refuse to have the vaccine by the end of the grace period, who are not exempt which is likely to raise a number of operational and legal issues for providers managing an already challenging staffing situation.
- An equality impact assessment in relation to the public sector equality duty has also been published, which considers the impact of the decision on those with protected characteristics (See: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1001051/vaccination-as-a-condition-of-deployment_public-sector-equality-duty2.pdf).
- The equality impact assessment notes that certain groups could be impacted significantly, including:
- Women and young people, due to higher levels of vaccine hesitancy and, in the case of women, potentially higher barriers to accessing the vaccine and higher representation in the workforce; and
- Ethnic minority staff and adherents to certain religions and beliefs, because there appears to be more significant levels of vaccine hesitancy in these groups.
Next steps for employers – preparing for 11 November 2021
- The “16-week grace period” has now started to run and the Regulations will come into force on 11 November 2021.
- Workers impacted by the requirement must have received both doses of the Covid-19 vaccine by this date if they will continue to be deployed in a care home.
- Employers should use this time to prepare for the changes, to avoid disruption to service delivery and ensure that they meet their legal duties.
- Practical steps that employers should consider taking include:
- Assessing Covid-19 vaccination uptake amongst their workforce;
- Continuing to inform, engage and consult with staff to encourage voluntary vaccination;
- Updating policies and other key documentation such as recruitment documents and contracts of employment; and
- Considering the data protection / GDPR considerations of processing special category health data of staff.
How can we support you?
We can provide:
- Briefing sessions for HR and management teams on the practical implications of the Regulations;
- Support on reviewing and drafting policies and procedures; and
- Assistance with navigating the options and providing practical and commercially sound advice on managing litigation risk.
What does this mean for the wider health sector?
On 16 June 2021, it was reported that the government plans to open a consultation on requiring Covid-19 vaccination as a condition of employment for those working in other health and social care settings. Whilst no further update has been provided on this, the consultation is expected to commence shortly.
If you would like to discuss this topic in more detail, please contact Jodie Sinclair.