In what many commentators regard as one of the most controversial developments in employment law of the modern era, the Department of Health and Social Care (DHSC) have this week published its response to the government consultation on making COVID-19 vaccination a condition of employment for workers in care homes in England.  DHSC were keen to note that SAGE's advice has been that a vaccination uptake rate of at least 80% is required in care home staff to provide a minimum level of protection against outbreaks of COVID-19, but that only 65% of care homes in England are currently meeting that minimum level requirement.  In London, the rate is thought to be as low as 44%.

 

In view of that DHSC response, the government have confirmed that they will implement the mandatory vaccination requirement by amending the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (SI 2014/2936) to insert a new provision in the fundamental standards in Part 3 of the Regulations. This will be subject to a 16-week grace period following the coming into force of the amending regulations. 

 

The requirement to be vaccinated applies to those who work in all care homes in England under the auspices of the Care Quality Commission (CQC) where residents require nursing or personal care.   As well as all care workers (full or part-time, agency staff or volunteers included) those who go into care homes to do other work (such as tradespeople or hairdressers) will also have to comply with the mandatory vaccination regulations.  

 

As you would expect, certain exemptions apply.  Residents themselves are not required to be vaccinated and nor are their friends and family who may visit.   Any care home worker who is medically exempt will not need to be vaccinated and nor will anyone assisting with an emergency or carrying out urgent maintenance work or anyone working only in the external grounds.  Finally, any workers under the age of 18 will not need to comply.
 

Those covered by the new rules will need to produce evidence of having had a complete course (two doses) of an authorised COVID-19 vaccine (or evidence that they are exempt from vaccination).  It is not entirely clear at this stage what evidence will be required;  further guidance will be published on this.  Whilst many people may be able to use the NHS App to provide their vaccination status, it is generally accepted that many workers in the care home industry will not have access to this iPhone only App.

Controversial as this mandatory regime is in this sector alone, will we see the approach extended elsewhere?   The government's official press release has said that there is a case for extending this policy "beyond care homes to other settings where people vulnerable to COVID-19 receive care, such as domiciliary care and wider healthcare settings."    Matt Hancock, Health Secretary, perhaps went a little further when he said this week in Parliament that he would be consulting on whether to extend this mandatory vaccination approach to the NHS but he did also add that "there are no plans to extend mandatory vaccinations beyond health and care workers".  

Watch this space!