The draft Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (the Regulations) have been approved by Parliament.

Anyone working in a CQC registered care home in England (with residents aged 65 or over) unless exempt, must be fully vaccinated against COVID-19.

The Equality and Human Rights Commission said that the Government is right to prioritise the protection of the right to life for residents and staff.

However, the Equality Impact Statement produced after MP’s voted seeks to address concerns regarding beliefs and other grounds of discrimination under the Equality Act 2010. So, these Regulations may yet be challenged by judicial review on libertarian grounds.

Which workers are affected by this change in law?

• Employees in around 15,000 Care Homes across England
• Any workers requiring indoor access to care homes. So those who provide nursing or personal care on a full-time, part-time or voluntary basis
• Individuals coming into care homes to do other work such as healthcare, tradespeople, hairdressers, beauticians and CQC inspectors

The following do not need to be vaccinated:

• Individuals entering the premises to assist in an emergency
• Individuals attending to carry out urgent maintenance work
• Anyone under the age of 18
• Clinical trial participants

Are any other exemptions acceptable?

Yes,  individuals  suffering from certain allergies and conditions (set out in the Public Health England (PHE) ‘green book‘) will not be required to be vaccinated.

Best practice would be to ask the individual to provide a letter obtained from a medical practitioner, confirming the exemption. Which should only be accessible only to those who need to see it.

Religious grounds are not recognised as reasons for exemption.

Legal compliance with change in Regulations

Prior to implementation of the Regulations, care home providers (and agencies deploying care home workers) can continue to encourage voluntary vaccination. The Government has provided specific materials to the healthcare sector to help with this.

Under The Equality Act 2010, employers are prohibited from asking a job applicant health-related questions before making a job offer, unless one of a limited number of exceptions apply.  How these Regulations will integrate is as yet unclear. But detailed Government guidance to care home providers is expected to clarify how vaccination status checks will comply with the law. Wider health-related questions will remain unlawful.

Employers need to make applicants aware of the requirement to be vaccinated. But those who are legally exempt from the requirement for vaccination can still apply for the role. Alternative arrangements such as Interviews conducted away from the care home for those who have not been vaccinated for any reason may be appropriate.

When regulations became law, there was a 16-week grace period to allow unvaccinated workers to arrange get vaccinated before its provisions become effective.

Once regulations became fully in force, Employers faced with an employee refusing vaccination must follow a fair process. Considering redeployment to suitable alternative roles if any, and/or following a fair dismissal process should avoid a successful claim for unfair dismissal on grounds of a breach of a statutory restriction.

Under these new Regulations a claim being brought against care home providers (requiring workers to be vaccinated against COVID-19) for unfair dismissal and/or unlawful discrimination under the Equality Act 2010 will be significantly reduced. Employers mandating for vaccination will simply be complying with their legal requirements.