A decision by the Westminster government to make it compulsory for everyone working in care homes in England to be fully vaccinated from October raises ethical and legal questions for other employers in the wider economy.
The proposals announced on 16 June means anyone who works in a Care Quality Commission (CQC)-registered care home must receive both doses of the COVID-19 vaccine or potentially face dismissal unless they have a medical exemption.
Critics warn that the move could prompt private sector employers to make it a legal requirement for all of their employees to be fully vaccinated or lose their job, even in industries where risks are well managed and staff pose a negligible risk to the public and other employees.
The warning comes after Pimlico Plumbers announced plans in January to introduce ‘no jab, no job’ work contracts.
Andrew Darling, communications officer at the Department of Health and Social Care, told IOSH magazine that the new regulations had been laid before Parliament on Tuesday (22 June). The government’s intention, he added, is that the regulations will be made sometime in July before the summer recess.
A 16-week grace period will then apply so that staff requiring the jab can take up the vaccine. The timetable means the new laws could come into force as early as October.
The decision follows an extensive public consultation which received more than 13,500 responses from care home staff, providers, stakeholders, residents and their families.
Once enacted, the legislation will apply to all workers employed directly by the care home or care home provider, whether that is on a full or part-time basis.
It will also cover workers employed by an agency and deployed by the care home and volunteers deployed in the care home environment.
Anyone carrying out other work in a care home such as healthcare workers, tradespeople, hairdressers and beauticians and CQC inspectors must also comply with the new regulations unless they have a medical exemption.
Visiting family and friends, under 18s, emergency services and people undertaking urgent maintenance work will be able to enter care homes without requiring a vaccine.
Philip Harman, employment partner at international law firm DAC Beachcroft, told IOSH magazine that the government needs to provide greater clarity on the medical exemptions.
‘There are hard medical reasons [for being exempt] – some people have underlying medical conditions which means they can’t have a vaccine,’ he said.
‘In other cases, people with mild allergic reactions can have it but it needs to be delicately controlled.
'The HSE doesn't see vaccination and testing as part of the control measures that an employer should be looking at in the COVID-19 risk assessment process'
‘Someone will need to make a clinical decision about whether an individual with an allergy should get vaccinated or not.’
Harman highlighted a number of contentious areas, including religious or other beliefs and individuals who refuse vaccinations because they are against their personal views or even because they are nervous of needles. However, the government, he continued, has taken a hard-nosed approach and will not allow exemptions in these cases.
‘If it’s uncomfortable for you or it has a mild impact on your medical condition, you may still have to have the vaccination,’ he said.
For those care workers who are exempt, greater clarity is also needed on how to safeguard others that come into contact with these individuals. The government’s consultation notes that special controls need to be put in place to deal with exempted workers, but more detail is needed, added Harman.
‘We can’t go into that 16-week cool-off period unless you know whether you are in or out of the exemptions. It needs to be crystal clear. Also, what evidence do I need to produce to prove that I am exempt?’
The logical conclusion of the rules is that any employee who still refuses to be vaccinated after the grace period ends will be dismissed but this raises the issue of future legal challenges.
Harman said: ‘If someone says, “I’ve got a religious reason for not wanting the vaccine” and they lose their job, are there grounds for them to challenge the decision?’
Responding to the government’s proposals, Christina McAnea, general secretary at the UK’s largest union UNISON, said that to produce the best results, people need to be encouraged to take up vaccination rather than be coerced.
She pointed to joint research, which concludes that a move towards mandating COVID-19 vaccination is likely to ‘harden stances and negatively affect trust in the vaccination, provider, and policymakers’.
McAnea warned there is also a risk that ‘some staff may simply walk away from an already understaffed, undervalued and underpaid sector.’
'It’s harder to justify it in a private sector model where the risks are more manageable compared to a care home'
Rhian Greaves, legal director at DAC Beachcroft, said that the Health and Safety Executive (HSE) does not see vaccinations and testing as a health and safety issue.
‘Aside from signposting people to the relevant guidance on testing and the priority groups for vaccinations, the HSE is not taking a positive position as to what employers should do’ she said.
‘They don’t see vaccination and testing as part of the control measures that an employer should be looking at in the COVID-19 risk assessment process.’
Last week’s announcement includes plans for a further public consultation to decide whether COVID-19 and flu vaccination should be a condition of deployment in other health and care settings where vulnerable people receive care, such as domiciliary care and wider healthcare environments.
If the government’s proposals pass into law, Rhian thinks inevitably more employers across different sectors will look to introduce mandatory vaccinations.
‘From my perspective, it has to be a real exception rather than the rule,’ she said.
Philip concurred. He recognises that there is a strong incentive to vaccinate in the care sector because it is about protecting vulnerable groups.
‘If you are talking about other sectors, there is less of an incentive but some private sector employers are looking to introduce a compulsory model,’ he said.
‘Whether it is right or wrong, my anecdotal view is that they seem to be getting away with it because employees are going along with it.
‘However, at some point, we’ll have a test case that challenges that model. The question then is can the employer justify this action? It’s harder to justify it in a private sector model where the risks are more manageable compared to a care home.’
'IOSH advocates for better education, awareness and communication with workers on the importance of vaccination'
Responding to the announcement, Ruth Wilkinson, head of health and safety (policy and operations) at IOSH, said: ‘The proposal to amend regulations to deploy only those workers who have received both doses of their COVID-19 vaccination (unless medically exempt) is still awaiting parliamentary approval.
‘IOSH does not have a formal consulted-upon position about this specific proposal, however we do recognise the challenges of balancing in workplaces the need to protect vulnerable people with respecting peoples’ rights, responding to public health risks, and addressing growing staff shortages in the health and social care sector.’
Wilkinson pointed to IOSH’s position on vaccination in the workplace, which covers the current legal position.
‘We advocate for better education, awareness and communication with workers on the importance of vaccination, its efficacy and how it works to protect us and others, and look for ways to include peer-to-peer persuasion,' she added.
The Social Care Working Group of the Scientific Advisory Group for Emergencies (SAGE) has advised that an uptake rate for one dose of 80% in staff and 90% in residents in each individual care home setting is needed to provide a minimum level of protection against outbreaks of COVID-19.
Although most care home workers have now been vaccinated, the government’s press release warns that only 65% of older care homes in England are currently meeting the minimum level of staff uptake for one dose needed to reduce the risk of outbreaks in these high-risk care settings – a figure that falls to 44% of care homes in London.
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