The government has recently announced that it will compulsory for all members of care home staff to be vaccinated against Coronavirus, with plans being considered for a similar move in the NHS.
This would not be effective immediately: the new legislation would begin to bite in October, with staff allowed 16 weeks, until February 2022, to receive vaccination. This would not apply to those who are medically unable to take the jab, and in care homes not registered with the CQC standard.
The compulsory measure would be implemented through an amendment to Regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, which requires registered providers of care to give that care and treatment in a safe way for service users.
Specifically, regulation 12(2)(h) would be amended. This sub-clause requires that, as part of providing safe care and treatment, providers must assess the risk of, and prevent, detect and control the spread of, infections. The Code of Practice on Infection Prevention Control and its associated guidance will also be updated. The onus is therefore on the care home itself to ensure its staff members are vaccinated.
There are concerns about privacy: your employer, the care home provider, would therefore be under a quasi-obligation to check your medical records and ensure you are compliant with the regulation. While this would be limited to searching for one (or two) specific vaccinations, it could open the door to arguments that employees should be screened for other vaccinations in the future.
Another key question is whether the proposals are necessary at all. As of 4 April 2021, 94.1% of eligible people living in care have received at least their first vaccination, with that figure being 78.9% of all eligible workers in those settings. The government believe that the latter needs to be at around 80% in order to prevent outbreaks of Covid-19, and they are concerned that uptake rates in parts of the country, particularly London, remain slow and low.
Considering that one of the main reasons people are not taking the vaccine is the ‘fear of the unknown’ i.e. it is believed it has not been properly tested and/or the side effects of it are not properly known, it is likely that in time, and certainly by February 2022, the majority of care home workers will already have voluntarily had the vaccine. In the end, this appears to be a media storm to encourage vaccine uptake and demonstrate that the government taking its obligations towards maintaining standards in social care seriously.
For further information on this topic or on any other legal area, please contact John Szepietowski or Kay Stewart at Audley Chaucer Solicitors on 01372 303444 or email admin@audleychaucer.com or visit our Linkedin page.
Alina Dewshi
July 2021
