AN UPDATE: Considering the issue of mandatory COVID-19 vaccinations for health and social care workers

UPDATE: This article has been updated since it was first published on 4 January 2021 and since it was updated on 18 January 2021. The time of writing this article is 23 March 2021.

During a December 2020 Ridouts’ webinar (Videos – Ridouts Solicitors) a healthcare provider asked the question, “Do you think it will become mandatory for staff to have a COVID-19 vaccination to be able to work in a care home?” This was an interesting question and one that was on the minds of many providers as the COVID-19 vaccination programme started to be rolled out across the UK.

At the time of first writing this article on 4 January 202, I considered this question and gave the answer that it is extremely unlikely that it will become mandatory for staff to have a COVID-19 vaccination to be able to work in a care home. This is because there is currently no legal basis for mandatory vaccinations. The Public Health (Control of Disease) Act 1984, gives the Government powers to make regulations to protect public health. However, any such regulations may not include provision requiring a person to undergo medical treatment’ and medical treatment includes vaccination’. For vaccines to become mandatory, the law would need to be changed and Prime Minister Boris Johnson has already said that compulsory vaccination is, “not the way we do things in this country” (23 November 2020). However, at the time of updating this article on 23 March 2021, it appears that the Government’s position has changed. According to a report submitted to the COVID-19 operations cabinet subcommittee last week which was leaked to the Telegraph, it appears that Boris Johnson and Health Secretary, Matt Hancock are behind proposals to change the law to require that COVID-19 vaccinations become mandatory for care home workers.

The issue of COVID-19 vaccinations is quite complex and an employer has a number of obligations to balance. Employers currently have no statutory right to require that employees are vaccinated. This means that employers cannot force employees to have a vaccination and an employee has every right to refuse to be vaccinated. However, this position could change if new legislation is brought into force. As present, for employers to require that staff are vaccinated, they would need to include provisions in employees’ contracts to allow for this. For existing staff members, contracts might need to be varied by agreement and there could be resistance to this from staff who are concerned about the safety of the vaccine or those who object to receiving it on the basis of other grounds (such as moral or religious beliefs). There may also be staff who cannot receive the vaccine for various health reasons (for example, pregnancy). Whatever the reason, employers need to be careful not to discriminate against employees who choose not to or cannot have the vaccine.

Implications for providers if employees do not want to receive the COVID-19 vaccine

Providers need to assess and manage risks to service users, staff and visitors to their service. Assessing and managing risks to these three groups of people is always a balancing act.

Speaking on BBC Breakfast on 23 March 2021, Mr Hancock said that care providers have raised concerns about low vaccine take up among care home staff and said that the Government was considering this issue although no final decisions have been made”.  Under Regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, Care and treatment must be provided in a safe way for service users” and this includes, “assessing the risk of, and preventing, detecting and controlling the spread of, infections, including those that are health care associated”. If staff are vaccinated against COVID-19, this would help to prevent and control the spread of Coronavirus to service users. BBC Breakfast presenter, Dan Walker asked Mr Hancock about the potential human rights implications in making COVID-19 vaccinations mandatory for staff and Mr Hancock’s response was that the human rights of residents in elderly care homes needed to be taken into account and said that care workers have a duty of care to these people.

Employers have a legal obligation under the Health and Safety at Work etc. Act 1974 “to ensure, so far as is reasonably practicable, the health, safety and welfare” of all employees at work. In the context of the COVID-19 vaccine, some  staff members have chosen to be vaccinated and others have chosen not to be. If a member of staff chooses not to be vaccinated, employers will need to consider the risk of this to service users and to other staff members and steps will need to be taken to prevent the risk of transmission of coronavirus to them. Such steps could include frequent testing of staff, the use of PPE and social distancing or reallocating staff to non-care tasks. Of course there are significant cost implications in doing this. There are also cost implications in staff shielding because they are in the highly vulnerable category or staff needing to take sick leave because they are self-isolating.

How to deal with healthcare workers who do not want to receive the COVID-19 vaccine

Whilst many healthcare workers are positive about the vaccine and want to receive it, there will be some workers who are concerned about receiving it (and others who choose not to or are unable to receive it). For staff who do not want to receive the vaccine because of safety concerns, employers should consider exploring these areas of concern with staff. Public Health England (PHE) has published guidance, ‘COVID-19 vaccination: guide for healthcare workers’ (updated on 1 March  2021) which explains why it is important for healthcare workers who are at a much higher risk of repeated exposure to coronavirus to receive the vaccine. Providers could refer staff to this guidance and staff can then make their own informed decisions about whether or not to be vaccinated. A copy can be accessed at the following link:

https://www.gov.uk/government/publications/covid-19-vaccination-guide-for-healthcare-workers/covid-19-vaccination-guide-for-healthcare-workers

It is particularly important for employers to understand why a vaccination has been refused so that they do not stray into discrimination territory.

Potential consequences of non-agreement to vaccination

There may be consequences if staff choose not to receive the vaccine. This is similar to the introduction of Criminal Records Bureau (CRB) checks, the former to Disclosure and Barring Service (DBS) checks. If the law does change and healthcare workers are required to be vaccinated, staff who do not comply with this would have to be dismissed or reallocated to non-care tasks.

Until the law changes the position in relation to vaccination remains the same. Subject to proper assessment of risks and with a view on providing safe care and treatment for service users at all times, it is likely that providers will reasonably be able to refuse to allow staff who refuse to be vaccinated (who are eligible) to come to work. However, this will need to be thought through and risk managed to help avoid arguments of discrimination. Providers should consider adopting a general risk based policy. If any policy is adopted, it should enable an element of flexibility to ensure that any exceptional cases can be considered on a case-by-case basis.

In respect of current or existing employees who refuse to be vaccinated, it may be worth reviewing existing agreements as these may already include grounds by which an employer can deal with this contractually. That review may also want to consider whether existing contracts or policies need to be amended by variation and if so, what formalities need to be met, if agreements do not already provide that providers can require vaccinations. Alternatively, there may also be something in contracts which exist which already allow providers to legitimately request staff are vaccinated as an ongoing condition of employment. It is important that any steps taken by providers are well documented and that proper notice (and disciplinary processes if applicable) are followed and that this is done properly on the basis of business need, risk and legal requirement purposes.

It may well be that a provider decides that it is unwilling to deploy staff who have declined vaccination. This dismissal is likely to be fair, provided that individual circumstances and alternatives have been explored. In effect, staff who decline are refusing a lawful instruction. The termination might still be a breach of contract requiring notice. This will always need careful thought and advice, commissioners might insist on vaccination in which case termination for non-compliance may be acceptable.

We would expect that in respect of future employees, even if COVID-19 vaccinations do not become mandatory under law, it would be reasonable to require vaccination as a condition of employment. There are reports in the media that the care provider, Care UK has said it is a requirement for all new staff to have had their COVID-19 vaccine before starting work at their services. It is a requirement  in the care sector that some other immunisations are compulsory and there is clearly a merit in ensuring that staff do not bring a highly contagious virus into a care home. This may require providers to amend standard agreements and policies if they do not already have this included.

Conclusion

As set out in this article, until the law changes, the position remains the same in relation to  COVID-19 vaccination. If a provider decides to go down the route of varying employees’ terms of contracts to require that staff are vaccinated, they might find that there are various objections raised to taking this approach. However, that does not necessarily mean that they should be afraid of taking this approach. Provided employers think things through carefully and make decisions properly based on risk assessment (and ensuring they remain compliant with the applicable regulations and the law), they should be prepared to stand their ground. Any decision to adopt a policy should be properly considered and documented and provided that this is done correctly, a provider should be in a position to defend their reasoning.

The position in relation to vaccination has developed considerably over the last four months and will continue to develop over the coming weeks and months. If the law does change and COVID-19 vaccinations become compulsory for care home workers, there are likely to be various human rights challenges that arise from this. It should also be noted that the pandemic is bringing up a number of legal grey areas which are as of yet untested. To help protect themselves, employers should have robust risk assessments in place in relation to managing all coronavirus associated risks, whatever they may be.

If providers need any advice or assistance in relation to any of the issues raised in this article, our specialist solicitors can help. Please contact Ridouts Professional Services Ltd using the email address info@ridout-law.com or by calling 0207 317 0340.

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