Are COVID-19 vaccines about to become mandatory for healthcare workers?

17th June 2021



 

Recent news indicates that the government is considering making the COVID-19 vaccine compulsory for staff in care homes who look after the older generations in England. With speculation being that the announcement is imminent.

 

What is the current situation?

Throughout the roll-out of the vaccine and even at present, receiving the vaccine is entirely voluntary and so no-one can force you to get vaccinated.

By mid-February 2021, the government asserted that it had met its target of offering all frontline care workers their first dose. At the time, 47% of English care homes had more than a fifth of staff who had omitted to take up the vaccine. This prompted a consultation to be launched in April by the Department of Health and Social Care (DHSC) to see what could be done to improve uptake.

Despite various campaigns, webinars and advertisements targeting health care workers, there are some areas where fewer than 80% of staff have been vaccinated. This falls short of the essential to keep the virus out if 90% of residents have been vaccinated.

 

What are commentators saying?

The government remain concerned about the low uptake of the vaccine in some areas. 

They argue that the vaccine is necessary to keep both residents and staff safe and that a mandatory requirement to take the vaccine outweighs the individual’s right to choose whether to take the vaccine. Further, that various healthcare workers are obliged to be immunised against specific conditions to work within their area.

Some care home providers have already implemented policies and procedures for ensuring their front-line staff were vaccinated before coming into contact with residents.  However, the care sector is split and have raised concerns about mandatory vaccinations.

The British Medical Association claim that mandatory vaccinations are a “blunt instrument” which carried with it several risks. This concern is echoed by the chairman of the Independent Care Group, Mike Padgham, who raised concerns about potential legal disputes. 

In addition to the legal issues, the care sector is currently struggling to recruit enough staff to fill its already depleted ranks. There are concerns that mandatory vaccinations may drive out even more from the sector which could have a detrimental impact on the quality of care to the residents that the government seeks to protect. The union, GMB, found that more than a third of 1,000 members who were carers would quit if their jobs required mandatory vaccination.

 

How will the compulsory requirement work?

Under the plans, those working on the frontline will have 16 weeks to get vaccinated or be required to move away from the profession. This may result in people being dismissed from their position.

These plans will not affect those who are medically exempt from getting the vaccine.

 

Our thoughts

There are a plethora of reasons why staff do not wish to take the vaccines and we do not have time to review them all in this short article. However, it is also of upmost importance that we protect the most vulnerable in our society. At present the care sector in England has had more than 40,000 deaths involving COVID. 

Some of the legal questions that are likely to arise will include:

  • Data protection. As a care homeowner or agency who hires or puts people forward for roles on the frontline, you are going to have to consider whether you will have a lawful justification for processing this ‘special category’ data.  Depending on how the government implements these new rules, if there is a statutory requirement to ensure your frontline staff are ‘jabbed’ then this will likely fall under the legal obligation for processing this type of data. Though you should always consult the data protection requirements carefully before jumping to process special category data.
  • Unfair dismissal. Similar to the above, if there is a statute requiring frontline healthcare workers to have the COVID-19 vaccination then dismissal could fall under the “breach of enactment” as a potentially fair reason. Though we would always sound a word of caution that you should not jump to dismissal.
  • Discrimination. There are fears that requiring staff to be vaccinated could result in claims for indirect discrimination.  This is where your organisation creates a provision, criterion or practice (PCP) that places the individual with a particular protected characteristic when compared to those who do not share it. Depending on the way you implement the PCP, even where it may be considered discriminatory, you may be able to defend such claims by pointing out that it is a reasonable step to meet an objectively justified end, for example meeting the requirements of legislation.

In the coming days we will hear more about how this will work and so our advice on this matter may change. What will not change is that the government will need to approach this matter with caution and get the balance right to avoid aggravating the care sector and causing friction between care home organisations and their workforce.

 

Get in touch

If you would like to discuss any employment issues, arising from this article, please do not hesitate to speak to a member of the employment team on 01325 466794 and ask for Anthony Willis or Alexander Millward. Alternatively email: anthonyw@bhplaw.co.uk or alexmillward@bhplaw.co.uk

Alexander Millward

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