The regulations making it mandatory for anyone entering a registered care home in England to have been double vaccinated, unless they are clinically exempt, were made on 22 July 2021. There is a 16-week grace period and the regulations take effect on 11 November 2021. This means the last date for an existing employee who has not yet been vaccinated to receive their first dose of the vaccine is 16 September 2021.
As a result, all organisations that operate registered care homes in England now need to urgently implement appropriate systems to comply with the new regulations. There are still a number of areas where guidance is awaited and we expect the guidance to be published on or around 30 July 2021. In the meantime, providers should:
1. Notify all staff of the regulations being passed and the requirement for anyone who has to attend a care home during the course of their duties to produce evidence of vaccination or a clinical exemption. We suggest setting a deadline for the evidence to be provided.
2. Develop a system for obtaining and storing evidence of vaccination or clinical exemption. Acceptable evidence of vaccination is likely to be the same as that used for foreign travel. Evidence from the NHS App, the NHS website or a letter/email from the NHS.
3. Make sure those gathering evidence or involved in recruitment understand the clinical exemptions. These are set out in the Green Book here and further guidance is awaited.
Our summary is that exemptions include:
- Allergic reactions – a prior systemic allergic reaction to the vaccine or prior allergic reaction to another mRNA based vaccine or similar reaction to another component of the vaccine including PEG;
- Pregnancy – Where vaccination isn’t progressed during pregnancy it should be offered “as soon as possible after pregnancy”;
- Being acutely unwell or who have Covid-19 – The clinical evidence would only be valid for the period they remain unwell;
- History of a previous episode of heparin-induced thrombocytopenia and thrombosis (HITT or HIT type 2);
- A clotting episode with concomitant thrombocytopaenia following the first dose of the AstraZeneca vaccine.
4. Consult with those staff who do not produce the requisite evidence in the next few weeks, making clear that from the end of the grace period they will not be able to continue in their roles without the necessary evidence having been produced.
5. For those staff who cannot produce the evidence required, begin consultation about dismissal taking into account their relevant notice period. The discussions with staff should explore their reasons for objecting to the vaccine and whether they can be overcome. They should also explore alternatives to dismissal. Are there other roles where they would not be required to enter a care home? Bearing in mind the need to give contractual notice, which in some cases may be 12 weeks, some employees may need to be given notice by 18 August. Notice could be withdrawn if evidence of vaccination or exemption is subsequently produced.
6. Implement a system for obtaining and storing evidence of vaccination for visitors to the care home and preventing anyone who is not exempt from entering the care home. We suggest writing to all contractors you currently work with who attend the premises notifying them of the regulations and the evidence you will need and also explaining the exemptions. The exemptions are:
- Service users residing in the premises;
- Someone providing emergency assistance;
- Someone carrying out urgent maintenance;
- Someone carrying out duties as a member of the emergency services;
- Friends or relatives of a service user who is or has been residing in the premises;
- Someone visiting a service user who is dying;
- Someone attending where it is reasonably necessary to provide comfort or support to a service user in relation to a service user’s bereavement following the death of a friend or relative;
- Someone under the age of 18.
7. Update recruitment documentation so the vaccination requirement is clear from the outset so only staff who can comply apply and ensure any offers of employment are conditional on evidence being produced.
8. Ensure all employees will agree to have any booster vaccinations that may be required at a later date. Whilst the regulations do not currently require this, we expect this is something that will be required at a later date.
For more information
In light of the need for employers to act quickly to change their process, Anthony Collins Solicitors have produced a detailed toolkit with resources to enable care providers to quickly implement the steps necessary which is available now. For further detail contact Matthew Wort.
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