How to Prepare for Compulsory Coronavirus Vaccinations
Jessica Clough, Trainee Chartered Legal Executive, Boyes Turner
In this article, Jessica Clough, Trainee Chartered Legal Executive in Boyes Turner’s employment team, considers what employers can do to start preparing for the new rules which will make coronavirus vaccinations compulsory for all care staff.
The new rules – what we know so far
On 7 November 2021, the government announced that it would be rolling out the requirement for mandatory vaccinations to all health and social care staff and ancillary workers, not just those providing care in a hospital or care home setting.
The announcement stated that “Health and social care workers, including volunteers who have face-to-face contact with service users, will need to provide evidence they have been fully vaccinated against COVID-19 in order to be deployed”.
There should be a 12 week grace period between the rules coming into force and starting enforcement action, to allow time for people to get both doses of their vaccinations. Enforcement action could commence from 1 April 2022.
The new rules do not currently apply to booster vaccinations, only to the first two vaccination doses – although this may change. They do not apply to flu jabs either as this part of the proposal was dropped following consultation.
We do not yet know the exact wording of the new proposal but we are told it will be an extension to current regulations so is therefore likely to follow the same path as the existing rules on vaccination of care home staff, i.e. those who are unable to be vaccinated as a result of certain medical conditions will be exempt.
Although the legislation is still going through Parliament and is not expected to come into force until sometime in Spring 2022, it is already a source of great concern to many parents and Deputies who are worried they will lose good care staff as a result of this requirement, at a time when it is harder than ever to recruit. With Omicron now shown to be even more transmissible than Delta and infection figures spiking across the UK, they will also be concerned about protecting vulnerable Service Users.
Employers have already started asking what they can do to prepare in advance of the new rules coming into force.
Don’t try this at home!
The rules are not yet finalised and we do not yet know exactly when they will come into force. As a result, you cannot force staff to declare their vaccine status or to provide you with proof of their vaccine status.
You should not threaten staff with dismissal if they refuse to get vaccinated, or give their vaccination status or provide evidence of their vaccination status as this could give rise to potential constructive unfair dismissal, disability discrimination, victimisation and harassment claims.
Even if you try a hard-line approach, you cannot guarantee that staff will tell the truth about their vaccine status, so such an approach is likely to be counter-productive.
Also remember that vaccines, while very helpful in protecting ourselves and others, are not the only source of protection against infection for service users and therefore the importance of maintaining other Covid-19 infection control measures, such as handwashing, good ventilation, being alert to symptoms and mask-wearing, should not be overlooked.
What can we do?
Employers understandably want to find out whether their staff have been vaccinated or not so they can plan ahead for any holes likely to develop in their care teams as a result of the new rules.
The best approach at this stage is to encourage friendly and open discussion about vaccinations within care teams, and try to encourage anyone who is hesitant to get vaccinated.
Have a friendly discussion with staff about the coronavirus generally in the next few weeks and then ask about vaccination status as part of that conversation. Such a discussion might include the following points:
- Remind staff about the importance of maintaining infection control measures, particularly during winter months and when coronavirus case levels are high
- Ask how they are feeling about the new variant and the introduction of Plan B rules
- Ask about travel plans. If anyone is travelling abroad, have they thought about whether they will need to quarantine or self-isolate on their return?
- Ask if staff have had their normal flu jabs yet and recommend they get them, if they haven’t already done so.
- Ask if staff have had their coronavirus vaccinations yet
- Ask how people are finding trying to get hold of Booster appointments
- Discuss that coronavirus vaccinations are likely to become compulsory for all NHS and care staff early next year, which will include everyone in support worker roles. Just having a recent negative test result will not be sufficient.
- If someone says they are not vaccinated, ask about their concerns and try to encourage them to consider getting jabbed. Be supportive of those who are unsure about getting vaccinated, see if they can be gently persuaded. You may decide to continue this conversation on a one to one basis as they may be uncomfortable discussing their concerns in front of others.
- Point out that, if and when the rules change, a lack of vaccinations may affect their ability to stay in their job, unless they have a medical reason to exempt them. However, do not bully or threaten staff to get their jabs by saying if they don’t have them then they will lose their jobs.
Employers or Case managers should aim to have regular catch-ups with unvaccinated staff over the next few months to encourage them to discuss any fears or concerns about getting vaccinated and see if they can resolve any of them.
Don’t forget that medical data, including vaccination status, is “sensitive” personal data for the purposes of General Data Protection Regulations, so should be stored securely and access to it should be limited to only those who need to know for one of the purposes set out in your Privacy Notice. Data should be retained only for so long as is necessary and should be corrected if it becomes inaccurate.
Finally, this is something that we will have to keep an eye on as the bill progresses and as we get more information about when the new rules will come into effect.
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.