Covid vaccinations and care homes

As has been widely reported in the media, people working in CQC registered care homes in England will be required to be fully Covid-19 vaccinated with effect from 11 November 2021 unless they are medically exempt.  For this purpose, a care home is defined as an establishment which provides accommodation, together with nursing or personal care, for any of the following:

• people who are or have been ill;
• people who have or have had a mental disorder;
• people who are disabled or infirm;
• people who are or have been dependent on alcohol or drugs.

An establishment is not a care home if it is a hospital or a children’s home.

The requirement applies not only to employees of the care home, but to everyone who enters the home except care home residents, friends and relatives of care home residents, emergency help providers (e.g. ambulance crews, emergency plumber) and children under the age of 18.

Care homes will therefore have to check all visitors other than those listed above to ensure that they can show that they are fully vaccinated or are able to produce proof of a medical exemption.

Staff who refuse to be vaccinated

The main issue for care homes in the run up to the new legislation is dealing with staff who are refusing to get vaccinated. Unless they are able redeploy those staff into roles which mean they do not need to enter the homes, they will have no choice other than to terminate their employment, because quite simply it would be unlawful to continue their employment.  Those dismissals will be potentially fair, as one of the potentially fair reasons for dismissal is that if the employer continued to employ the employee, they would be in breach of a statutory enactment.  However, employers should still consult with the employees to make sure that they cannot realistically redeploy the employee, and also to ensure that the employee realises the consequences of their decision.  Employers will also need to keep an eye on the calendar.  Employees who are dismissed because they refuse to be vaccinated will still be entitled to notice, so unless the employer is prepared to be saddled with the additional cost of paying the employee in lieu of notice, they need to ensure that they give the employee notice long enough before 11 November 2021 so that they can work their notice period – and remember the statutory minimum notice is up to 12 weeks for long serving employees.

We have advised a number of care homes on issues around the new legislation, and one of the problems which they are facing is the fact that they may well be losing good staff, and that recruitment of replacement staff is so difficult and expensive, particularly where other care homes are also recruiting for the same reason.  That said, they are all keen to do what they can to protect their residents from the ravages of Covid, and the feedback on the legislation we have received from clients is generally positive, but like it or not, they will have no choice!