The draft 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.
The Coronavirus has, during this year-long pandemic, caused employers to ask questions many thought they would never ask; how many of my staff will the Government pay whilst they remain at home not working? Can I force my workforce to have a vaccine? It’s this latter question that is most pressing, especially in the health and social care sector, as we emerge from Lockdown 2021.
The UK Government has not made the Covid-19 vaccine mandatory although, at the time of writing, a leaked document has suggested that it is considering this in the health and social care sector. That said, social care providers already have several safety-related obligations under which encouraging staff to get vaccinated would be expected. Under section 2 of the Health and Safety at Work Act 1974 (HSWA 1974), they have an obligation to ensure the health, safety, and welfare of their employees. This includes an obligation to ensure, so far as reasonably practicable, that their employees are not exposed to Covid-19 by reason of their duties. Under section 3 of the HSWA 1974, they also have an obligation to ensure the health and safety of those people affected by their operations. This of course includes the people they support. In addition to the obligations under HSWA, they also have an obligation under Regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 to ensure, so far as is reasonably practicable, that those the organisation support are provided with safe care.
To comply with these obligations, providers would be expected to assess the relevant risks associated with their operations and to implement, so far as reasonably practicable, suitable and sufficient measures to address/mitigate those risks. The exposure to and/or the transmission of Covid-19 is clearly a risk arising from the provision of services and, as such, employers are expected to implement suitable and sufficient measures to address this risk. The obvious measure that should be implemented, to comply with safety-related obligations, is to offer and expect regular testing of the care workers. But can mandatory vaccination also be implemented to mitigate the risk of Covid-19 transmission?
We advise as the law currently stands, it is unlikely that employers would be able to justify mandatory vaccinations, and so we would encourage employers to approach any vaccination programme differently.
- Educate and inform the workforce about the vaccination programme - provide employees with very clear evidence relating to the benefits of the vaccine, the risks in not taking it and highlighting, in a transparent way, the known risks of the vaccination. It would be helpful to provide staff with resources and signpost them to the evidence and information so that they can feel empowered and informed when making decisions. Public Health England (PHE) published guidance, ‘Covid-19 vaccination: guide for healthcare workers’ (updated on 1 March 2021), which explains why it is important for care workers to receive the vaccine.
- Have a clear process for identifying why someone is refusing vaccination and working through their objections on a one-to-one basis should be the next course of action. Employers should be having open conversations with staff who do not wish to be vaccinated, to listen and understand their concerns and then see if any reassurance can be provided. Consultation with staff and sensitive internal communications should contribute more towards voluntary take-up of the vaccine.
- Employees may object to a vaccination citing that this is because of their health, a ‘religious belief’ or because they are what is referred to as an ‘anti-vaxxer’ - have never received a vaccination, nor intend to and are actively against vaccinations. Although there is no case law setting out that strong feelings against vaccinations can be considered a ‘belief’ under the Equality Act 2010, it is certainly something we could see being accepted by the courts. Some care workers may also seek to argue that to require them to undertake a test is against the Human Rights Act, as the right to respect for private life (under Article 8) includes the right to decide whether to undergo medical treatment. Given that staff continue to work with service users with appropriate PPE and without being vaccinated, where there is a strong belief about vaccinations we would advise caution against enforcing a vaccination programme or penalising employees who will not comply for reasons of belief and/or health.
Some employers have introduced or are considering incentivisation programmes. These could be seen to indirectly discriminate against people and could be seen to downplay the significance of their concerns. Again, we would advise against this option.
The approach employers take with future recruits can, in our opinion, be more robust where the approach and messaging is managed carefully. Our advice at Anthony Collins Solicitors is that employers can require it to be a condition of an offer of employment that an applicant is Covid-19 vaccinated and that they continue to be so i.e. have further doses of the vaccination in the majority of cases. Employers will, however, need to give careful consideration as to how such an approach is implemented, how the relevant paperwork is drafted, how they manage staff who refuse the vaccine once employed, and how they will manage those that are not vaccinated because of a reason related to a disability or religion/belief (for the reasons highlighted above). We would therefore suggest seeking legal advice before changing recruitment practices and our team is able to help ensure this is done well.
To address these issues in more detail and with practical solutions and suggestions, we have developed a Toolkit. It provides both the legal background and a lengthy FAQ section to enable employers to drill down into these issues. Please contact email@example.com for more details.
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