On 11 November 2021 it will become law that anyone entering a CQC registered care home (which provides accommodation together with nursing or personal care) must have had a complete course of an authorised Covid-19 vaccine (note that individuals who have been vaccinated with mixed doses of Covid-19 or a non-authorised vaccine will not be considered to be fully vaccinated). For Care Home staff this means that they will only be able to continue to work inside a Care Home if they are vaccinated, are under the age of 18, or medically exempt.
The Government has recommended that Care Homes should adopt a written vaccination policy to cover matters such as the deadline by which you are asking staff to provide evidence of vaccination or exemption in time before the 11 November and, what will happen if staff cannot comply. Having spoken to those managing Care Homes we know that some have already served notice of termination on members of staff who are unvaccinated in advance of 11 November to ensure that they work their notice (rather than having to pay them in lieu of their notice) by 11 November. Others have been actively pursuing deployment of unvaccinated staff into other roles where the legislation does not apply.
It is important to note that the legislation extends further than just to those who are deployed to work in Care Homes and also covers visiting professionals. It is therefore important to ensure that you are well prepared for compliance in respect of those who may cross the threshold of a Care Home. This could cover public servants, including visiting healthcare professionals or social care workers, as well as those delivering non-care services such as hairdressing, maintenance or activities. Although there are exemptions for emergency visits, urgent maintenance or emergency assistance within the Care Home, it is for the registered manager of the Care Home to make that decision and to ensure that it is properly recorded. Further, whilst the registered person can delegate responsibility on checking vaccination status of those who do enter the Care Home, they will remain legally responsible for compliance with the legislation.
So what can be done between now and the 11 November 2021 to make sure your Care Home is prepared? The first step must be to review the physical premises and understand who may enter that would meet the definition of visiting professionals. If you have pre-existing arrangements and contracts with third parties (such as caterers and maintenance operatives) these should be reviewed so as to (1) ensure that the contractors understand the requirements of entry and (2) any impact on services can be managed and (3) if necessary the parties can agree to vary the terms of the contract to ensure that they operate compliantly and effectively. In addition, steps can be taken to seek confirmation of vaccination or exemption status in advance from those who are likely to enter from the 11 November. However note that when undertaking these checks you must ensure compliance with UK GDPR and the Data Protection Act 2018 (DPA). This will include giving careful consideration to what special category personal data will be handled, the lawful ground for processing such data and ensuring that you have appropriate data sharing arrangements in place. Remember all that needs to be checked and recorded is the status of the individual i.e. whether they are vaccinated or exempt and the date that the status was checked. You do not and should not be taking copies of the evidence of vaccination status provided and where individuals state that they are medically exempt, you should not be asking for the reason for the medical exemption. This is data that you do not need and therefore such processing is unnecessary and is likely to be in breach of UK GDPR and the DPA.
Given the importance of making sure that you are processing information about vaccination and medical exemption status in compliance with the UK GDPR and DPA, in advance of 11 November, we would strongly urge that you undertake a review of your data protection policies and privacy notices to ensure that such processing is done in a way that is consistent with data protection legislation.
Although the legislation may bring a number of challenges to Care Homes, these will be more manageable if this short window is used before implementation to ensure clear policies and procedures are in place by 11 November, which we can help with.
If you need any advice or assistance in respect of:
- Employment issues, please contact Katie Maguire
- Commercial contracts, please contact Michelle Mullen
- Data protection, please contact Hetal Ruparelia