What constitutes a good idea?

The Government has recently passed legislation to ensure that all care homes workers are vaccinated against COVID-19. It comes into force on 11 November 2021, and only applies to England.

The legislation states that a care home provider must ensure that nobody enters a care home unless they fall into one of the identified exceptions. The main ones are:-

• Care home residents
• Friends and relatives of care home residents (broadly drafted)
• Emergency help providers (eg ambulance, emergency plumber)
• Children under 18

If someone does not fall into one of the identified categories, the care home must not allow them entry unless they provide evidence that:-

• They have completed a course of an approved COVID-19 vaccine; or,
• for clinical reasons they cannot be vaccinated

Interesting issues

• Only those who cannot be vaccinated for clinical reasons will not be required to abide by the Regulations-this is a very strong message put out by the Government allowing very limited flexibility for workers/care homes to avoid full vaccination. Religious and philosophical beliefs do not suffice as a grounds to justify not having the vaccine and therefore those who may have legitimate philosophical or religious belief that the vaccine is contrary to their faith/beliefs will not be able to establish that they have been discriminated against.
• There is a time lag for enforcement allowing a 16 week period before the Regulations are effective. Essentially this is to allow care homes to “encourage” workers to complete the vaccination programme, plan accordingly and warn workers of the consequences if they do not.

The good idea concept

The Government when asked whether it would roll out a similar scheme for all workforces was clear…..”it would be a good idea for employers to insist on vaccination”. There are a plethora of issues raised by this approach:-

• It places the onus on each employer to define what is a good idea -that is a broad term-and open to interpretation and very sector specific.
• Employers must do a full health and safety assessment to ensure the workplace is safe in any event and this could be part of the “good idea” assessment.
• If employers are insistent that the workforce is fully vaccinated -what is the rational behind this? What is the level of risk and exposure and can other methods be utilised to ensure that the work-place is safe?
• A plan of action should be put into place to ensure that there is a mechanism for dealing with objections- for example consideration of homeworking for those who do object.
• A good idea may still fall foul of a workers religion or belief for non-care home staff and therefore justification is key.

There are a range of problems facing employers as the push to return to the office space gathers momentum. It is crucial therefore that employers think through the options and document the process. Engaging with staff, acting responsibly and thinking in a flexible way is the key to success.

If you would like to speak to a member of the Burnetts HR and Employment team you can contact them on 01228 552222 and hello@burnetts.co.uk