Four unanswered questions about vaccination and care homes

Operational guidance for the vaccination of people working or deployed in care homes was published on 4 August. It provides much useful information on the steps care home managers now need to take to implement the regulations, which from 11 November will require most people aged 18 and over entering care homes in England to be vaccinated. However, there remain a number of unanswered questions, including the four outlined below.

Medical exemptions

It will be particularly important to understand the medical exemptions from the requirement to be vaccinated. The operational guidance explains:

“There will be a clear process for staff to follow if they think they may have a clinical reason to be exempt. This process will be aligned with certification for domestic events, exemptions from self-isolation for confirmed contacts and travel. Guidance for certification is being developed and we will add a link to this guidance here as soon as it’s published.”

Collective redundancy consultation

The obligation to consult collectively could be triggered in a number of circumstances when seeking to implement the requirements of the regulations, particularly in the case of larger employers. However this is not addressed in the guidance.

For example, if an employer wishes to impose changes to contracts of employment to introduce a term that makes vaccination a condition of employment, that would normally trigger the requirement to consult collectively, if at least 20 staff are involved at a single establishment. Equally, there is a possibility that these requirements could also be triggered if the employer is contemplating the dismissal of an equivalent number of workers within a 90 day period for refusing to get vaccinated.

Under 18s

The publication of the operational guidance coincided with the announcement by the Joint Committee on Vaccination and Immunisation that all 16 to 17-year-olds should now be offered a first dose of Pfizer vaccine. It remains to be seen whether the Government will extend the scope of the regulations to reflect the wider availability of vaccines for this age group.

Impact outside care sector

One can hardly expect the operational guidance to address this directly, but many employers will be keen to understand whether this guidance could provide a template for introducing a similar policy in their workplace. Views will differ, but the following observations are offered:

• If nothing else, the degree of complexity involved in implementing a vaccination requirement in the care sector, even when underpinned by legislation, will prompt employers in other sectors to think carefully before imposing similar requirements on their workforce.
• That said, much of the guidance would provide a useful template for employers who believe they have good reasons for making vaccination a condition of employment for some roles.
• However, given the UK’s overwhelmingly voluntary vaccination culture, it is hard to see many employers being willing embrace the legal and industrial relations risks of imposing such a policy if they are not legally required to do so.
• The position may be different in other jurisdictions, particularly those that make vaccination against certain illnesses a condition for entry to state nurseries and schools.