During a recent 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 is an interesting question and one that is on the mind of many providers now that the COVID-19 vaccination programme has started to be rolled out across the UK.
In answer to this question, 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).
Employers also have no statutory right to require that employees are vaccinated. 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 would 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 health reasons. 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.
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. However, for the reasons set out in this article, mandatory COVID-19 vaccination is extremely unlikely and so providers will need to consider other ways to manage this.
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, a situation may arise where some staff members choose to be vaccinated and others choose 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 31 December 2020) 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 here.
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. Although unlikely, if the law was changed and healthcare workers were required to be vaccinated, staff who do not comply would have to be dismissed or reallocated to non-care tasks. If the issue becomes one of guidance or recommendation, great care would need to be taken to review the terms of staff contracts.
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.
As set out in this article, it is extremely unlikely that it will become mandatory for healthcare staff to have a COVID-19 vaccination but there may be consequences for non-vaccination. The position in relation to vaccination will continue to develop over the coming weeks and months. 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 Plc using the email address firstname.lastname@example.org or by calling 0207 317 0340.