New regulations were made on 22 July 2021 and will come into force on 11 November 2021, requiring all persons working or deployed in a CQC registered care home (which provides accommodation together with nursing or personal care) to be fully vaccinated against COVID-19, unless an exemption applies. This will be introduced as a new provision within the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. Whilst the regulations extend to both England and Wales, they will apply to England only.

The regulations will have a significant impact on care homes, their staff and visiting professionals. Following our top tips for employers, we provide you with the latest developments around the regulations.

Judicial review

On the 9 September 2021, a judicial review application against the Government and Health Secretary Sajid Javid was filed with the High Court on behalf of two care home workers. It has been reported that the legal challenge is being crowdfunded and also funded by freedom of choice campaigner, Simon Dolan.

We understand that the regulations are being challenged on the following grounds:

• That the regulations are incompatible with laws prohibiting the enforcement of mandatory vaccines.
• That the Health Secretary failed to consider the efficacy of alternatives to mandatory vaccination and did not consider the vaccination rate of care homes and/or persons with natural immunity.
• That the regulations interfere with the public’s right to ‘bodily integrity’ and that interference is severe, unnecessary, and disproportionate.
• That the regulations will disproportionately impact women and those who identify as Black/Caribbean/Black British, in contravention of Articles 8 and 14 of the European Convention on Human Rights.
• That the regulations are irrational and will lead to shortages in both front-line and non-front line care workers.

If the challenge succeeds, the Court may order that the regulations should be amended or even that they are quashed (declared null and void). We will keep a close eye on the proceedings and inform you if there will be any changes to the practical steps you need to take.

New temporary self-certification rules

The Department of Health and Social Care (DHSC) wishes “to ensure that people who are not able to get the vaccine for medical reasons are not disadvantaged”, and so has brought in new temporary measures announced in a letter dated 15 September 2021.

Care home workers can now temporarily self-certify that they meet the medical exemption criteria by signing the self-certification form to give to their employer as proof of their temporary medical exemption status. This temporary self-certification will expire 12 weeks after the NHS COVID Pass system is launched and care home workers will then need to apply for a formal medical exemption through the NHS COVID Pass process.

The guidance provides some limited information on the types of conditions that will lead to medical exemption, although it stresses that the list is not exhaustive.

This change follows on from the new regulations, which state that those who can provide evidence to the care home provider that they cannot have a COVID-19 vaccine for a medical reason, will be medically exempt from the mandatory vaccination rules. The Government published operational guidance for employers on 4 August 2021, however, further guidance is still awaited on what amounts to a medical exemption and the evidence required.

Capsticks’ view

For care home workers who do not yet know whether they will be eligible for formal medical exemption status, the temporary self-certification option will be a welcome relief. It may also be a relief for employers who would otherwise have had to consider dismissing staff because they could not provide the required proof of their medically exempt status. However, it does still leave room for uncertainty for both staff and employers.

The self-certification form requires workers to acknowledge that providing false information may result in disciplinary action being taken against them by their employer. However, many workers will have strong perceptions about their own status with regard to the vaccine and employers may have little choice but to accept a self-certification form at face value (unless they have a very sound basis upon which to question its validity).

How Capsticks can help

Employers affected by the mandatory vaccination requirements will need to take immediate action. To give you the best possible start, we have prepared a suite of documents (a detailed advice note, template policy and letters to affected staff) that you can use as templates.  If you would like to access the documents or need further guidance on the vaccination deadline, please contact Victoria Watson, Alistair Kernohan or Chloe Edwards.