The Government has announced mandatory Covid-19 vaccinations for frontline NHS staff in England, with a deadline of April 1 for both doses.
Care home workers in England were told last year that they must be fully vaccinated by the deadline of November 11..
It would mean only those who are fully vaccinated, unless medically exempt, could be deployed to deliver health and care services.
And those that don't could be forced to take desk jobs instead.
The Government has previously said all staff in registered care homes in England must be vaccinated against Covid-19 from November 11, unless medically exempt.
Care groups called for the mandatory vaccine policy to be axed or delayed so providers can get through winter challenges without more staff leaving.
Unison head of health Sara Gorton said: “The NHS has more than enough on its plate without the Government adding more to its to-do list.
“Vaccination rates are already high across the NHS. Instead of compulsion, ministers should be looking at redoubling their efforts to boost voluntary take-up, which is already more than 90%.
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“Mandatory jabs in social care have prompted an unprecedented staffing crisis.
“The Government should be careful not to make the same mistake twice. It should also consider practical alternatives like daily testing.”
But what are the legalities behind mandatory vaccination? Businesslive asked the experts.
Can employers force someone to have the jab?
From November 11, people working or volunteering in certain care homes in England must be vaccinated by law, unless exempt.
Anyone who works indoors in a Care Quality Commission (CQC) registered care home must be fully vaccinated against COVID-19, unless they're exempt. This only applies to CQC registered care homes that provide accommodation for people needing nursing or personal care.
It means that staff will need to have received their first vaccination by 16 September 2021 at the latest.
This will apply to most people who enter the care home for work, including:
- staff
- agency workers
- contractors or self-employed people hired to carry out work in a care home, for example tradespeople, occupational therapists or hairdressers
- volunteers
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The following people are exempt:
- anyone with a medical exemption
- current care home residents and service users
- friends and family of a current resident
- workers who do not enter the care home, for example a gardener
- someone providing emergency assistance or urgent maintenance
- members of the emergency services who need to enter the care home to carry out their job
- anyone visiting a dying resident
- anyone giving bereavement support to a resident after the death of a relative or friend
- anyone under 18
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There is no other law that says people must have the vaccine, even if an employer would prefer someone to have it. Some people may have been advised not to have the vaccine for health reasons.
What if staff refuse to have it?
James Twine, partner at South West law firm Wolferstans said that the have placed care home owners and managers in the unenviable position of having to inform their staff, that unless they can prove they have had the vaccine or are exempt then they will not be permitted to enter the care home.
He said: "Of course, it is open for care home owners to place their unvaccinated staff on unpaid leave, but not only is this likely to be challenged by those staff, it does not resolve the issue. The staff will continue to accrue holiday pay, and the care homes may have difficulty recruiting for what can only be described as temporary vacancies.
"Furthermore, and even if the staff on unpaid leave have not resigned and issued claims for unfair constructive dismissal, those staff will still be employed by the care home and the issue remains unresolved."
What if my employer makes it a condition of employment?
Andy Davies, HR Expert at MHR said that making vaccinations mandatory for employees attracts a variety of risks, the scale of which is currently unknown.
He said: "The primary risk we can predict is claims of discrimination over religion, age, disability, or race. If an employee refused to have a vaccination and therefore an employer wanted to dismiss this individual (after two years of employment), the employer could face a claim at Employment Tribunal for unfair dismissal.
"Currently, there is no case law on this matter and we should expect confusion from both employers and employees until such law is established."
What's the fall out likely to be?
With current healthcare staff shortages, the most immediate risk employers face is the impact compulsory vaccines would have on their already limited talent pool, said Mr Davies.
The care industry has previously expressed concern over the effect mandatory vaccination may have on the sector’s already-stretched staffing levels.
In August, the Institute of Health and Social Care Management (IHSCM) surveyed more than 1,000 care managers in partnership with the PA news agency.
The survey found that nine in 10 managers said their workplace was experiencing staff shortages or having difficulty recruiting.
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A third of managers (32.8%) said they had staff quit or hand in their notice over the requirement to be vaccinated, while more than half (55.2%) said they feared they would have to dismiss staff over the coming months because they had not been vaccinated.
Mr Twine said that the regulations are controversial and have not been well received by many working in care homes who feel that they should have a choice over whether to receive the vaccine or not, without the threat of loss of employment.
He said that the regulations are currently being challenged, but remain legally enforceable.
He said: "The consequences of not complying could be devastating for care home owners. In these circumstances, care homes throughout the Country are effectively being forced to dismiss hardworking and valued staff when recruitment is already a concern and they still face the risk of claims from the staff who have been dismissed."
What other options are there?
Current recommend employers put in place vaccination policies rather than enforce mandatory vaccinations which explain the support available to them, including sick pay, if they suffer side-effects from having the vaccine.
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