Extending mandatory vaccination to the wider social care sector: a legal guide for providers

Today, 6 January 2022, the regulations extending mandatory vaccination to the wider social care sector and the NHS have become law. Providers have a 12-week grace period to ensure that staff in scope for vaccination are fully vaccinated or have evidence of a medical exemption, with the new requirement going live on 1 April 2022.

Having spent the last few months working with care home providers to implement mandatory vaccination there are valuable lessons to guide providers in the wider sector who will be embarking on the process.

What have we learnt from the care home sector experience?

Given the unprecedented recruitment and retention challenges in the sector, many providers were nervous about the numbers of staff they risked losing after 11 November. However, due to the heroic efforts from providers and HR teams across the country in informing, consulting, and encouraging staff to have the vaccine, many are in a better position than they had expected; we have worked with providers who have reduced the number of workers originally refusing vaccination by more than 90%.

There were challenges along the way. Medical exemption guidance arrived very late in the day and this created the need for two exemption processes (temporary and formal) which has unnecessarily complicated the process. There has also been vociferous challenge from some workers who neither wanted to be vaccinated nor lose their job, with providers having to manage grievances and whistleblowing complaints within the process. However, on a positive note, we saw a marked shift in the number of workers objecting to vaccination when the Government announced that it would be mandatory. Whatever your views on making vaccination mandatory, it has without doubt significantly increased take up amongst care home workers.

On the flip slide, a significant number of staff have also been lost to the sector. Data from October indicated that just over 10% (over 60,000 workers) had not received both doses of the vaccine. This doesn’t account for those workers who had already left their jobs because they were not willing to be vaccinated, of which there must have been many, so the numbers could be higher. The figures do include workers applying for a medical exemption, so a clearer picture of the number of staff leaving the sector will emerge after 31 March 2022. This is the date that workers who have had their exemption application rejected, and who do not want to be vaccinated, will cease to be eligible to work in a care home.

Expansion to the wider sector – what’s on the horizon?

Mandatory vaccination is being extended to all providers of CQC-related activities from 1 April 2022, with the effect that workers providing services regulated by CQC and who have face-to face contact with vulnerable people will have to be double vaccinated against COVID-19. Draft regulations have been published and are likely to be made law in early January.

The requirement could have a considerable impact on the homecare market, where 83.7% of care workers have had their first dose and 74.6% have had both doses (Care Management Matters, 9 November 2021). Further guidance is needed on the precise scope of the regulations and how they apply, for example to the supported living market where operators may provide both regulated and unregulated services.

Exemptions are likely to be limited to those who are medically exempt or under the age of 18. Anyone providing care as part of a shared lives agreement will also be exempt.

The vaccination requirements for new recruits will be different and provide more flexibility:

• Workers recruited after the new regulations are made (most likely in January) will have to provide evidence of their first vaccine and will have 10 weeks to get their second dose.
• Workers recruited after 1 April will have to show that they have had at least the first dose 21 days before the start of their employment and will be able to start working providing they have a second dose within 10 weeks.

This is a positive development and minimises the risk of new recruits being put off joining the sector due to having to wait 8 weeks to be fully vaccinated, during which time they would most likely have found work in another sector where there is no requirement to be vaccinated.

The Government has indicated that it is dropping its plan to also make flu jabs mandatory. Booster jabs are also excluded, although that may change if there are concerns about new variants.

Top tips for implementing your vaccination process

If you are caught by the new regulations, it is imperative that you start planning now. Here are the key areas for you to consider:

1. Review Covid Passes and keep a signed and dated record of having reviewed them.
2. Identify which workers are not fully vaccinated.
3. Review your Business Continuity Plan if there is a possibility of losing a significant number of workers.
4. Take legal advice on whether collective consultation obligations apply. These require you to elect, inform and consult with employee representatives of affected employees. Non-compliance carries an award of up to 90 days’ pay per employee.
5. Continue to inform, engage and signpost vaccine hesitant workers. Identify and address their specific concerns and how they can be overcome. Ensure managers are adequately trained to have these delicate conversations; getting it wrong could entrench hesitancy.
6. Identify any workers asserting an exemption as early possible and signpost them to the exemptions process.
7. Calculate notice periods for where dismissal becomes necessary. An employee with 12 years’ service will be entitled to at least 12 weeks’ notice, so you will need an efficient process to reduce payment in lieu of notice costs.
8. Be prepared to be challenged by some staff and be mindful of whether complaints need to be dealt with as a formal grievance.
9. Follow a fair dismissal process. You will have a fair reason for dismissal if an employee refuses to be vaccinated and is not exempt (“statutory restriction”); however, a fair process is required to avoid an unfair dismissal claim.
10. Adapt your recruitment process to reflect the new requirements and update job adverts, offer letters, and employment contracts.

We can help

To guide you safely through the process we offer a range of fixed fee services:

1. Mandatory Vaccination Recruitment Packs with job ad, offer letter and employment contract wording.
2. Advice meeting on collective consultation requirements, exemptions, following a fair dismissal process and avoiding risk issues.
3. Template correspondence for consultation, exemption and (if required) dismissal process.
4. Grievance outcome letters and/or responses to Trade Union correspondence.

We can also provide adhoc advice on any queries you have regarding implementation of the mandatory vaccination requirement.

For more information, please contact James Sage on [email protected] or 07508 297597.