Parliament voted to approve the draft Regulations on mandatory double vaccination for anyone entering a registered care home in England, unless they are clinically exempt, subject to a short list of exemptions.
The MP vote took place on 13th July. There is a 16 week grace period from when the Regulations are 'made'. Despite concerns being raised about human rights and the lack of an impact assessment for the regulations, only a few Conservative MPs rebelled against the Government.
Following a debate in the House of Lords this week (20th July) that evidenced the strong arguments on both sides of the mandatory vaccination argument, the House of Lords approved the draft Regulations.
Anthony Collins Solicitors shared the news that The House of Lords approved the Regulations but 'with regret' because the Regulations do not include any information about how the legislation will operate and that this will be left to guidance that will not be available until the end of July.
The House of Lords Secondary Legislation Scrutiny Committee had expressed its concerns about the Regulations.
Some of the concerns outlined included:
- Why is no guidance published yet on what evidence of vaccination would be required?
- Why is the use of PPE and masks sufficient to manage the risks for visitors, but not staff or hairdressers attending at the home?
- What would the impact be in a sector already struggling to recruit?
Matthew Wort of Anthony Collins solicitors, said, ‘Regulations could be challenged on human rights grounds. However, it will now be left for employees affected by the Regulations and their representative bodies to consider whether to challenge the new rules and, as of yet, we haven't seen any suggestions that a judicial review will be initiated. As a result, all care homes now need to urgently implement appropriate systems to comply with the new regulations.’
Vic Rayner OBE, CEO of NCF, said in relation to the signing off of the regulations by the Care Minister, 'With the regulations now approved, the countdown to implementation begins. The regulations will come into force on the 11th November, and the delayed impact statement produced by the government earlier this week outlined the potential impact on the care sector across all care homes. The statement itself was limited in detail and we await the full scale analysis that backs it up. However, even with its summary assessment it is clear that even the lower level assumptions recognise the very significant and potentially catastrophic challenges for the delivery of care if the right level of guidance and support is not available.
In relation to the impact on the workforce, Vic Rayner OBE added, 'By their own assumption the government have determined that it is likely that 7% of the workforce will not be deployable as a result of this policy. The assessment claims that this is likely to mean that 40,000 staff are unlikely to be able to work in care homes within the next
16 weeks. In addition, the statement identifies an associated cost of £100m to recruit and train replacement staff. However, this assumption does not bear any reference to the costs of implementation of the policy itself.'
Karolina Gerlich, CEO of The Care Workers' Charity, said, 'We cannot continue to put additional requirements on social care workers unless they are recognised as a professional workforce and paid wages that represent this professionalism. They cannot be subject to professional expectations and yet not paid appropriately – social care careers are still widely perceived as ‘easy’ and this perception has led to the workforce being undervalued and underpaid as a result of this perceived lack of professionalism.'
According to solicitor Matthew Wort, there is still a number of areas where guidance is awaited, however, there are key things that need to be done as soon as possible. Matthew Wort recommends that social care providers should consider the following:
- Notifying all staff of the Regulations being passed and the requirement for anyone who has to attend a care home during the course of their duties to produce evidence of vaccination or a clinical exemption. Ideally providing them with your policy on vaccination.
- Develop a system for obtaining and storing evidence of vaccination or clinical exemption. Acceptable evidence of vaccination is likely to be the same as that used for foreign travel. Evidence from the NHS APP, the NHS website or a letter/email from the NHS.
- Make sure those gathering evidence or involved in recruitment understand the clinical exemptions. These are set out in the Green Book here and further guidance is awaited.
- Consult with those staff who do not produce the requisite evidence in the next few weeks making clear that from 2th November, they will not be able to continue in their roles without the necessary evidence having been produced.
- For those staff who cannot produce the evidence required, begin consultation about dismissal taking into account their relevant notice period. The discussions with staff should explore their reasons for objecting to the vaccine and whether they can be overcome. They should also explore alternatives to dismissal. Are there other roles where they would not be required to enter a care home? Bearing in mind the need to give contractual notice, which in some cases may be 12 weeks, some employees will need to be given notice in early August. Notice could be withdrawn if evidence of vaccination or exemption is subsequently produced.
- Implement a system for obtaining and storing evidence of vaccination for visitors to the care home and preventing anyone who is not exempt from entering the care home. The exemptions are:
- Service users residing in the premises.
- Someone providing emergency assistance.
- Someone carrying out urgent maintenance.
- Someone carrying out duties as a member of the emergency services.
- Friends or relatives of a service user who is or has been residing in the premises.
- Someone visiting a service user who is dying.
- Someone attending where it is reasonably necessary to provide comfort or support to a service user in relation to a service user's bereavement following the death of a friend or relative.
- Someone under the age of 18.
7. Update recruitment documentation so the vaccination requirement is clear from the outset so only staff who can comply apply and ensure any offers of employment are conditional on evidence being produced.
8. Ensure all employees will agree to have any booster vaccinations that may be required at a later date.
In light of the need for employers to act quickly to change their process, Anthony Collins Solicitors has produced a detailed toolkit with resources to enable care providers to quickly implement the steps necessary. For further detail contact email@example.com.
CMM would like to hear from providers and people in care settings, for their reactions on the news. Get in touch by commenting below or email: firstname.lastname@example.org
In an earlier issue of CMM, Liz Jones, Policy Director at The National Care Forum, shared some insights from a member survey on what mandatory vaccination would mean for providers.