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In what many commentators regard as one of the most controversial developments in employment law in the modern era, the government have confirmed that COVID-19 vaccinations will be a mandatory requirement for those who work in care homes in England. This requirement, (when it comes into force, which is likely to be in the coming weeks), will have a 16-week ‘grace period’ to give those who have not already been vaccinated the opportunity to do so.

The decision follows confirmation from the government’s medical advisers that a vaccination uptake rate of one dose of at least 80% in care home staff is required to provide a minimum level of protection against outbreaks of COVID-19. It is understood that currently, only 65% of care homes in England are meeting that minimum level requirement, and it is thought that the vaccination uptake rate is as a low as 44% in some places, including London.

The requirement to be vaccinated will apply to those who work in all care homes in England under the control of the Care Quality Commission (CQC), where residents require nursing or personal care. As well as care workers themselves, this will also include those who go into care homes to do other work (such as tradespeople or hairdressers).

As you would expect, certain exemptions apply, including those who are medically exempt from being vaccinated, and workers under the age of 18.

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 (although at this stage is not entirely clear what evidence will be required).

For existing care home employees (who are not exempt), a refusal to be vaccinated may then mean that the employer can look to terminate the employment, without risk (although it remains to be seen how this new legislation will sit within the parameters of existing employment law). For new recruits (who are not exempt) applying for work in a care home, it appears to follow that the employer will be able to simply refuse to consider the application altogether.

Of course this has significant implications for other areas of employment law, particularly from a discrimination perspective, and therefore there is plenty of scope for potential legal challenge.

What this means for other sectors?

Controversial as this mandatory regime is in this sector, will we see the approach extended elsewhere? The government have expressly stated that “there are no plans to extend mandatory vaccinations beyond health and care workers” although as publisher Bloomsbury announces that vaccines will be compulsory for their staff returning to its office, it surely won’t be long before we start to see more companies opt for this approach.

It remains that implementing a mandatory vaccination policy outside of these new rules, without exception, (and giving an ultimatum of potential dismissal) is likely to run the risk of both unfair dismissal / constructive dismissal claims and discrimination claims. Our Employment Team has helped a number of businesses with vaccination policies, focusing on being flexible and dealing with refusal or other issues on a case-by-case basis, as well as consideration of things like offering paid time off to attend a vaccination appointment, offering a cash incentive, or (if / when possible) providing vaccinations in the workplace. If an employee is not willing to get the vaccine, employers should consider carefully the reason why before taking action, particularly where the refusal relates to health or religious beliefs (both of which could afford the employee protection against discrimination under the Equality Act 2010).

In terms of requiring job applicants to be vaccinated against COVID-19, in theory a contract of employment / offer of employment could be made conditional upon proof of vaccination, although this does once again risk the possibility of successful discrimination claims.

In respect of the recruitment process, it should also be considered that having such a policy in place may deter otherwise suitable applicants, as well as causing delays in the process. During the recruitment process it is important to avoid asking health-related questions prior to making an offer of employment, which would arguably extend to questions surrounding vaccination status, so this is worth bearing in mind also. As above, the safer approach, if a business feels a policy is necessary, is that it is not a compulsory vaccination policy.

As with all of these types of developments, much will depend on the way in which the COVID-19 pandemic continues to impact working life, so very much a case of ‘watch this space’, at least for now.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance. If you would like more information on the content of this article, please call the Employment Team on 01603 610911.