Covid-19, Seeking to Protect Vulnerable Service Users
In early February we advised on the government’s plan to introduce mandatory vaccinations for all care staff both in care homes and those providing care within the community. Following an abrupt change of mind, this legislation was dropped and as a result, there is no mandatory legal requirement for care staff in either care home or community settings to be vaccinated.
This was a welcome move for many in the care sector who had campaigned to stop the legislation, pointing out the extremely high levels of unfilled vacancies in the care sector as a whole and the fact that the introduction of mandatory vaccinations for care home staff, brought in in November 2021, had seen a spate of resignations of care workers, who were difficult to replace. However, many service users who are considered to be extremely vulnerable themselves to Coronavirus were sorry to see the protection that the legislation would have offered removed.
Where does the change in government policy leave service users, especially those who are clinically extremely vulnerable, who want to reduce their risk of exposure to coronavirus by ensuring their care staff are vaccinated?
What can employers do?
There is no legislation giving employers express permission to require their employees to be vaccinated against Coronavirus or to justify a blanket ban on hiring non-vaccinated staff. The law that would have allowed service users and their Deputies to demand vaccination in all staff and prospective staff has been removed.
The government has moved to a model of “living with covid”, removing many measures such as the requirement to wear masks in shops and on public transport. It has also removed the emphasis on testing, tracing and isolating by removing access to free lateral flow test kits as of 1 April. Self-isolating for those testing positive for coronavirus is recommended but no longer required. Access to SSP for those testing positive but not actually unwell with coronavirus has also been removed, and for those who are ill with coronavirus, SSP is now payable from Day 4 of their sickness rather than from Day 1 as it was previously. Whilst such changes have been welcomed by some businesses struggling with staff absence, these changes may well discourage people from testing themselves, reporting their results to their employer and/or from isolating if they do test positive.
At the same time, levels of coronavirus in the population is currently at the highest we have seen since the pandemic began with estimates of 1 in every 14 people being infected in the week commencing 4th April 2022.
So what can employers do to seek to protect vulnerable service users.
1. Risk assessments
The employer should carry out a risk assessment to assess the risks to the service user and how it will combat those risks, including the need for vaccination if necessary.
It may be possible to justify measures such as requiring staff to be vaccinated if the employer can show a legitimate aim that would justify having such requirements in place. For example, if the individual being cared for was classed as clinically extremely vulnerable.
However, vaccination should not be the only measure set out under the risk assessment and will not be appropriate and justifiable for all cases. It will depend on the circumstances of the case.
Employers should review their risk assessments on a regular basis to assess the changing coronavirus risk to their service user and ways that this risk can be managed.
2. Testing and reporting of testing
Those providing care to the vulnerable will still qualify for free lateral flow tests. Employers should have a testing regime in place to catch those who are in the early stages or without symptoms so they can be asked to self-isolate for a period of time. Government advice for healthcare workers suggests testing twice a week but it is open to employers to decide if they want more regular testing than this.
Employers should of course encourage employees to report their test results to them, especially if they test positive, and to isolate if they do (see below).
3. Encouraging self-isolating when staff test positive
While the government advice regarding the general population is to self-isolate only if you can and if they have symptoms, for those providing care a self-isolation period of 5 days from a positive test is likely to be advisable. Other employers may wish to wait longer, till the employee is no longer testing positive, which may take around 10 days. Employers should consider what measures it should put in place to support staff who have been asked to self-isolate. They will no longer be entitled to SSP from Day one of testing positive, and in fact may have no symptoms at all, in which case will not be entitled to SSP. However, where an employer is asking a member of staff who is willing to work, not to come in, it is essentially a medical suspension and they are entitled to full pay while off work.
4. Use of PPE and other infection control measures
Good infection control measures are still vitally important to have in place. Employers should continue to provide and insist that staff use PPE, especially masks, and continue to follow infection control measures.
Employers should discuss vaccination status with their staff and attempt to gently persuade those who are unvaccinated to get their jabs. Vaccinations should be considered in the context of other, less intrusive, measures which can be taken, such as wearing of PPE, social distancing, frequent testing.
Where an employer believes that vaccination of staff is essential to protect the vulnerable service user, and a combination of other protective measures is not sufficient, it may be able to justify requiring staff to be vaccinated.
The employer will need to show it has tried to find alternative options to requiring vaccination, and has followed a fair process with its employees, including considering if the employee could be moved into a non-service user-facing role (unlikely, but they must give thought to the possibility) as an alternative to terminating their employment. Ultimately, if the staff member refuses to get vaccinated the employer will have to decide whether to dismiss the employee on notice.
Legal advice should be sought before doing so as there will be a risk of claims for unfair dismissal for those employees with 2 or more years of service or who have a protected characteristic. Dismissal is likely only to be justified where there was a strong reason for requiring vaccination, such as the extreme vulnerability of the service user. Evidence may be needed from the service user’s treating clinicians as to why vaccinated staff is necessary to protect them. In other cases, a Tribunal is likely to find that other less intrusive measures would have been sufficient to protect the service user and that the employer has therefore unfairly dismissed its employee.
The position for new staff who have not yet accepted a job offer is slightly easier. Employers should set out in the job advert that this is a role where the employer will be looking for candidates who are either fully vaccinated or willing to be fully vaccinated due to the extreme vulnerability of the service user. This sets the candidate’s expectations but the employer should avoid having a blanket ban for anyone non-vaccinated as this could be discriminatory to carers who are unable to be vaccinated for medical reasons or because of a valid religious or cultural belief, or because they are taking part in vaccine trials. The job advert should also specify that their vaccination status will be discussed during the interview process.
Vaccine status is sensitive personal data and will therefore need to be covered by any Privacy Notice for recruitment candidates and evidence kept confidential.
In the job interview, it should be discussed that the preference is for them to be vaccinated to protect the vulnerable individual being cared for. A discussion should be had with those not vaccinated about why this is the case.
For the successful candidate, the contract of employment and offer letter should clearly set out that they are required to be vaccinated against Coronavirus as a contractual requirement of their role. The offer should be conditional on them providing evidence that they have been vaccinated. The offer letter and contractual clause will need careful drafting to avoid potential discrimination claims, so please seek legal advice when drafting these documents.
Consistent with Boyes Turner LLP policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.
Jessica is a trainee chartered legal executive in the employment team, providing legal support and assistance to clients on a range of employment law areas from drafting contracts and policies to advising on dismissals and redundancies. Her particular areas of speciality within the employment field include working with the care sector and Boyes Turner’s Court of Protection team.