Mandatory Vaccination – The Care Sector and Beyond

From the 11^th November 2021, legislation will come into force making it mandatory for those working in care homes in England to be fully vaccinated against Covid-19. This is as a result of the Health and Social Care Act 2008 (Regulated Activities)(Amendment)(Coronavirus) Regulations 2021 (“the Regulations”). The Regulations apply to all Care Quality Commission regulated care homes in England.

The vaccination requirement applies to all individuals who enter a relevant care home including employees, agency workers, volunteers, healthcare workers etc. There are a limited number of exceptions such as friends and family visiting the premises, those under the age of 18, and those providing emergency assistance or urgent maintenance in the care home. People will be denied entry if they cannot provide evidence they have been fully vaccinated, that they are exempt for clinical reasons or fall in one of the other exceptions. Those who are exempt for clinical reasons, will be required to apply for a formal medical exemption using the NHS COVID Pass system. The Government has recently published guidance on its website detailing some medical exemptions, including individuals receiving end of life care where vaccination would not be in the individual’s interest or individuals with learning disabilities, medical contraindications to the vaccines (e.g. severe allergy) and those who have had an adverse reaction to the first dose. This list is not exhaustive and there may be other instances where individuals will be considered medically exempt.

What about mandatory vaccination in other sectors?

Vaccination has not been made mandatory by the Government in any other sectors (yet), although this does not prevent employers from implementing their own mandatory vaccination policy. Many organisations have begun to mandate vaccination amongst their workforce on their own volition. Where employers have decided to implement this, they are not immune to legal risks and should be mindful of any potential consequences that may arise.

Are there any legal risks with implementing a mandatory policy?

Whilst this proposal in the care sector will become law, there still remains some potential legal risks in relation to individuals who cannot and/or refuse to have the vaccine and where employers do not deal with this issue appropriately.

A summary of the key legal risks is provided below but should this arise within your organisation, it may be appropriate to seek further legal advice, so as to not breach your legal requirement in the above Regulations (if applicable) but to also manage/avoid any potential employment claims that may also arise for organisations choosing to implement a mandatory vaccination policy outwith the care sector.

• Discrimination 

  The main underlying risk in applying the mandatory vaccination requirement, even within the regulated care home sector, is a claim for indirect discrimination.  On the face of it, where an employer requires mandatory vaccination within the remit of the Regulations, this will amount to a provision, criterion or practice (PCP) that may put individuals with a relevant protected characteristic at a particular disadvantage compared with others who do not share that protected characteristic.  Such individuals could include: those with disabilities, pregnant woman, those with strong religious or philosophical beliefs relating to certain types of medical treatment. With these risks in mind, employers need to ensure that they would have a defence to any claim and can show that applying the mandatory vaccination requirement without exception is justifiable as a proportionate means of achieving a legitimate aim (objective justification). In any event it will always be necessary in applying vaccination policies (mandatory or voluntary) to carry out a through and comprehensive risk assessment  on health and safety grounds to ensure that each employee and other work colleagues are being treated fairly and that the requirement to provide a safe working environment for all colleagues and service users is at the forefront of any decision-making procedures.

• Disability related discrimination/reasonable adjustments

  Some additional discrimination risks apply in terms of those who are disabled but are not clinically exempt. They may also argue that any failure to offer them a job or subjecting them to any less favourable treatment or dismissing them for not complying with any requirement (legal or otherwise) to be fully vaccinated, may amount to discrimination arising from disability (as a decision not to get vaccinated could be “something arising” from their disability). This would mean that any less favourable treatment of such job applicants or employees because they are not vaccinated would be discriminatory, unless objectively justified, as above.

Further a claim could be brought on the basis of a failure to make reasonable adjustments if alternative arrangements are not explored for disabled employees.

Comment

Whilst a lot is still to unfold and further guidance from the Government to be released, it may be that an Employment Tribunal may have difficulty criticising an employer trying to protect the health of vulnerable residents in care homes, and particularly where the policy has been mandated by the Government. However, mandatory or not, employers should be mindful of potential legal risks that could arise and what approach should be taken in relation to the implementation of vaccination policies (and any refusal to be vaccinated) based on a careful analysis of each specific set of factual circumstances applicable at the material time.