Mandatory COVID-19 vaccinations in CQC regulated care homes

The Government has passed new legislation that makes it mandatory for care home staff and other people entering the care home to have had two doses of a COVID-19 vaccine. This will have wide-ranging implications for care home owners who will need to comply with the new regulations.

On 11 November 2021, The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (“the Regulations”) will come into force, compelling Care Quality Commission (CQC) registered care home employers to ensure that anyone working in a care home in England for residents requiring nursing or personal care must have two doses of a COVID-19 vaccine unless they have a medical exemption. This will apply whether the CQC regulated activities are publicly or privately funded.

The Regulations have received a lot of attention in the press recently as the deadline for workers to receive their first does of a vaccine (if their second dose was to be in time for the 11 November deadline) was 16 September 2021. As this deadline has now passed, many care home owners are quite rightly concerned that they will be forced to consider dismissing a significant proportion of their employees when the Regulations come into force. Around six in ten care homes have suggested that they will be forced to dismiss employees by 11 November 2021. The Regulations will likely have a significant impact on the service delivery of hundreds of care homes across the country if large numbers of care home staff refuse to get the vaccine. This is at a time when there is already serious pressure on care home staffing numbers due to COVID-19 and Brexit.

Who will the Regulations apply to?

The Department of Health and Social Care (“the DHSC”) has released guidance which confirms that the Regulations will apply to “all workers employed directly by the care home or care home provider (on a full-time or part-time basis), those employed by an agency and deployed by the care home, and volunteers deployed in the care home”. The guidance also confirmed that all those coming into care homes to do other work such as healthcare workers, tradespeople, hairdressers and beauticians, and CQC inspectors will also be subject to the same rules by 11 November 2021. All of those listed will have to have received two doses of a vaccine.  

The DHSC has also confirmed in their operational guidance that the registered person at the care home needs to “satisfy themselves of the identity of the person entering the care home and their proof of vaccination”. The most appropriate and convenient method would be through the NHS COVID App but alternatives are the NHS website or a COVID Pass letter. The guidance specifically states that a vaccine appointment card is not sufficient proof.

The guidance also confirms that care homes should keep a record of:

• the vaccination or exemption status of staff members and the date that the status was last checked; and
• the vaccination or exemption status of those entering the care home unless exempt and the date that the status was last checked.

There is no requirement for registered persons to record the clinical reason behind the exemption - they should only record whether a person is medically exempt or not. Furthermore, a person entering a care home only needs to prove their vaccination status on the first occasion they enter. Care home managers can check more often than once per individual if they prefer. The care home should also ensure that any data or information processed in relation to an individual’s vaccine status is carried out in accordance with data protection legislation. This may involve care homes updating their existing data protection policies to ensure that the basis for the processing of special category health and medical data (i.e. compliance with the Regulations) is included.

Judicial review

A judicial review challenging the Regulations is going to be launched shortly. The law firm Jackson Osborne served a pre-action protocol letter on the Government signalling their intention to challenge the Regulations through the courts. The letter sets out six grounds upon which the lawfulness of the Regulations is being challenged:

1. That they are ultra vires, being incompatible with their parent Act and Parliamentary intent in passing it;

2. That they amount to a disproportionate interference with the right to bodily autonomy of front-line and non-front line care workers, contrary to Article 8 of the (European) Convention for the Protection of Fundamental Rights and Freedoms (‘ECHR’);

3. That they amount to a disproportionate interference with Article 8 rights in conjunction with Article 14, by reason of indirect discrimination on the grounds of race and/ or sex for front-line and non-front line care workers respectively;

4. That the vaccination requirement is irrational, and in the absence of pre-authorisation testing for their ability to reduce transmission and in circumstances where evidence increasingly shows that vaccines do not materially reduce transmission; in view of the irrational inclusion of some classes of person and not others; and through providing for a review within a year rather than a much shorter period, the Regulations were irrational;

5. That they were made in breach of the duty of sufficient inquiry; and

6. That they were made in breach of the duty to consult.

Although formal judicial review proceedings are yet to be issued, the case is being watched carefully by care home owners and legal commentators.

Proposed next steps for care homes

In terms of next steps for care home owners, the most important is to prepare for the 11 November 2021 deadline. It is expected that most care homes will have been consulting with staff for a while now but where that is not the case, rapid action is necessary to ensure staff understand the potential impact of the Regulations. Engaging in a dialogue with any of those employees who do not wish to be vaccinated is crucial. Whilst it is the personal choice of the member of staff, the employer should make sure that the implications of a decision not to be vaccinated are fully understood.

It will also be necessary for care homes to implement new processes to ensure that all those entering any CQC care home to do work have received two doses of an approved vaccine for COVID-19 (or are medically exempt). The DHSC operational guidance also contains useful advice on how care homes should implement the Regulations.

The DHSC have confirmed that prior to an NHS COVID Pass system being implemented, a temporary system of self-certification will be used to identify those staff members who are relying on a medical exemption. The self-certification form can be filled in by employees and includes a non-exhaustive list of medical exemptions that they can benefit from. Any employees claiming a medical exemption will need to sign the certificate to confirm that they can benefit from a medical exemption and they will obtain an official exemption via the NHS COVID Pass system once it is operational. This will allow any employees who are claiming a medical exemption to continue in their roles. The wording of the certificate includes an acknowledgement that if the employee is providing false information, they are aware that they may be subject to disciplinary action.

If care home employees are not fully vaccinated by 11 November and the owner has not managed to redeploy them into a role that would not require them to enter the home, there will be little choice but to terminate their contracts. Such dismissals would be on notice so care homes should begin to consider when notice might need to be served depending on length of service.

The Government has stated that the Regulations may provide a fair reason for dismissal if employees are not vaccinated or medically exempt. Any dismissal process must be carried out fairly.

We would advise the care home to create a contingency plan, including a full risk assessment to ensure that service delivery will not be significantly impacted by any potential dismissals.

If care homes expect serious disruption as a result of dismissals, they should contact the local authority who may be able to offer the registered provider assistance. Furthermore, if the registered provider has concerns that staffing levels affect their ability to operate the service safely, they are required to notify CQC under Regulation 18 (2) (g) of the Care Quality Commission (Registration) Regulations 2009:

any event which prevents, or appears to the service provider to be likely to threaten to prevent, the service provider's ability to continue to carry on the regulated activity safely, or in accordance with the registration requirements, including— an insufficient number of suitably qualified, skilled and experienced persons being employed for the purposes of carrying on the regulated activity.

Please note that the judicial review of the Regulations is likely to be an active case by 11 November 2021 and, if it is successful and the vaccine requirement in the Regulations is found to be unlawful, any dismissals of employees who refused to be vaccinated may be subject to reversal.