The Department for Health and Social Care (DHSC) published operational guidance on vaccination of people working or deployed in care homes on 4 August to help support the implementation of the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021.
• Employers must keep records of staff vaccination or exemption status and keep them up to date.
• Care homes should consider implementing a vaccination policy.
• Expanded guidance on exemptions from the requirement to be fully vaccinated is provided, but guidance around the medical exemption is still being developed.
• The guidance advises employers to use the time before the Regulations come into force to engage with their workforce, gather facts about vaccination status and advise of potential consequences of not meeting the requirements.
• Guidance is provided on the procedure that employers should follow with staff who are unable to provide evidence of their vaccination or exemption status. All options should be considered, including redeployment to an alternative role where vaccination is not required.
• Where redeployment is not available and the employer has adopted a fair process, the Regulations may provide a fair reason for dismissal, with notice, due to contravention of a statutory restriction or "some other substantial reason" (SOSR).
The guidance states that a care home will not breach the Equality Act 2010 on grounds of age, disability, religion or belief if it does anything it is required to do pursuant to the Regulations. This means that it will not be unlawful discrimination on grounds of age, disability, religion or belief for an employer to ensure that an unvaccinated non-exempt worker des not enter a care home. This exception may be available where a care home dismisses staff as a result of the Regulations, provided this is done in a fair and non-discriminatory manner. The exception does not extend to race, sex, sexual orientation, pregnancy and maternity, gender reassignment, marriage or civil partnership discrimination.
For a discussion of the mandatory vaccination requirement and how to prepare for it please refer to our bulletin 'Mandatory vaccination: opening Pandora's box'.
