Changes to the Health & Social Care Act

Posted 3 years ago

As the months pass, we all continue to respond to the global pandemic and the choices it presents us with. Organisations, institutions, and the general public throughout the world have all had to make changes and adapt to an unprecedented health crisis, the likes of which hasn’t been seen since the Spanish Flu of 1918.

Sadly, those most at risk from Covid-19 are also the most vulnerable in society. In an attempt to curb the worst effects of the virus, the government has updated the Health & Social Care Act to help stop its spread in care homes.

Here we answer some key questions to help you understand the changes taking place.

What’s changing?

The changes made by the government now require anyone entering a care home setting to have received a full course of Covid-19 vaccinations, unless they are exempt (we’ll discuss exemptions later on).

The new rules must be implemented and overseen in care homes by a Registered Person. Though certain tasks may be performed by other members of staff, the ultimate responsibility for checking the vaccination status of anyone who enters and maintaining and safeguarding a list of data falls to the Registered Person.

How do you prove your vaccination status?

Proof of vaccination status comes via the NHS COVID Pass service. In England, this service can currently be accessed in one of three ways:

The NHS app – A person’s vaccination status can be checked in the NHS COVID Pass section of the app. For more information, see here
The NHS website – Visit the NHS COVID Pass service here
A COVID Pass letter – Anyone can request a letter as proof of vaccination status either online or by phoning 119. Please note that the letter can take up to 5 working days to arrive.

People vaccinated in Scotland can find out how to access a record of their vaccination status here.

People vaccinated in Wales can find out how to access a record of their vaccination status here.

The government has not yet reached a decision on how people vaccinated outside of the UK can access a record of their vaccination status, but further guidance will be released on this in the future.

Do the rules apply to booster doses of the vaccination?

As of yet, the rules do not cover booster doses of the vaccination. Care home workers are strongly advised to take up booster vaccines, where available, and the wording of the Regulation leaves the door open for this to be made a requirement in the future.

When does the change take place?

The requirement to have received a full course of vaccinations comes into effect on 11th November 2021.

However, what this means is that for a person to be fully vaccinated by that date, they must have received their first dose by 16th September 2021 at the very latest.

What are the exemptions?

The requirement to be fully vaccinated only applies to those entering a care home, it does not apply to residents in a care home or anyone falling under any of the following exemptions:

Medical exemption – the current guidance doesn’t yet provide full details on what this might involve. The government is working on providing certification guidance and this will detail the process involved in establishing a medical exemption. It states that there will be a clear process for people to follow if they believe they are medically exempt, more information will follow.
However, the current guidance does state that the Registered Person will need to know that a person is medically exempt, but will not need to be told why they are medically exempt. The medically exempt individual may also be asked to take other precautions instead of vaccination to help reduce risk – by wearing additional PPE or being restricted to designated “safe areas”.
Residents exemption – as stated earlier, the new rules don’t apply to residents within a care home. However, they do apply to prospective residents who visit the care home.
Residents’ friends, family, and essential care givers exemption – the guidance suggests that it would be “unjustifiably detrimental to residents” to deprive them of access to their friends, family, and essential care givers (e.g. unpaid carers).
Emergency assistance exemption – a person may enter the care home without providing proof of vaccination status or exemption if they are doing so to provide emergency assistance either in the care home itself or in an adjoining building (for example, there may be a fire in the building next door and so a person could enter the care home without proof of vaccination in order to help evacuate residents).
It’s the responsibility of the Registered Person to decide what is and is not an emergency and to keep a log of all incidents that required people to enter without proof.
Emergency services exemption – anyone who is a member of the emergency services who needs to enter the care home to execute their duties is exempt.
Urgent maintenance work exemption – maintenance work taking place on the outside of the care home is not covered by these rules but work inside the building is covered. That is unless the work is urgently needed “in the event of a risk to life or continuity of care”.
It’s the responsibility of the Registered Person to determine when this exemption applies but the guidance provides a few examples, including:
• Failure or breakdown of gas, water, or electricity supply
• A dangerous electrical fault
• A gas leak, or
• Any fault or damage to the building structure which makes it unsafe or insecure
Death or bereavement exemption – if somebody visits a resident who is dying or if they are providing comfort and support to a resident following the death of a friend or relative, they are exempt. This includes people performing spiritual and religious rites. However, it does not include funeral directors or their staff.
Under 18 exemption – anyone under the age of 18 doesn’t need to prove their vaccination status, but they may be required to prove their age. Frontline health and care staff aged 16 and over are eligible for the vaccine and should make sure that they are fully vaccinated by the time they turn 18.

Further information for employers –

What information does the Registered Person need to record?

The Registered Person needs to keep a record of:

The vaccination or exemption status of staff members and the date that the status was last checked
The vaccination or exemption status of anyone entering the care home, unless exempt from being checked, and the date their status was last checked

Remember, for medical exemptions, the Registered Person should only record that the person is medically exempt and not why. Individuals are not required to share this information.

Professional visitors to the care home only need to be checked the first time they visit or register with the care home. Their status should then be recorded and all subsequent visits can be checked off against this record. However, the Registered Person can decide to perform more regular checks if they think it’s necessary.

All records must be checked regularly, kept up-to-date, and made available to the Care Quality Commission on request.

What about data protection?

Nothing in these rules relieves care homes of their duties regarding the GDPR or any other data protection laws and regulations. There need to be adequate safeguards in place, restricted access to the data being held, and any data policies/statements should be updated to include this new information – including what information will be stored, how it will be used, where it will be stored, who will have access to it, how it will be kept safe, what rights individuals have regarding it, how long it’ll be kept for, and so on.

Do we need a Vaccination Policy?

Organisations are advised to have a Vaccination Policy in place by 11th November 2021, though it isn’t, yet, a legal requirement.

A Vaccination Policy might cover:

Whether staff over 18 are entitled to time off work (with or without pay) to be vaccinated or obtain proof of exemption
The date by which employees will need to provide proof of vaccination or exemption
Any arrangements allowing for staff to take leave due to side effects from the vaccine
How data relating to employee vaccination status will be processed
How policies will apply to employees who can’t comply with the requirement
How vaccination requirements will be handled with new recruits and agency placements
Any issues arising from the Equality Act

Even if there is no formal Vaccination Policy, it is very important that employers give some consideration to these points and communicate their decisions with their staff.

Can employees be dismissed for refusing vaccination without an exemption?

The short answer is yes. However, before dismissal, all other options should be explored first – such as moving the employee to a different role which doesn’t require vaccination.

If there are no alternatives, dismissal can be considered but they must at all times comply with “employment and equalities law and adhere to good employment practice”.

It’s important to note that not being or refusing to be vaccinated should not be considered misconduct, but providing false information about vaccination status should be (most likely gross misconduct).

What would a fair dismissal for refusing to vaccinate involve?

The procedure for a fair dismissal for refusing to vaccinate should include:

A consultation with the employee
Warning the employee of the risk of dismissal if they refuse to provide proof of vaccination or exemption status within defined timeframes
An opportunity for the employee to explain their circumstances and any reasons they should not be dismissed (this should be at a formal hearing where a trade union member or work colleague should be allowed to attend)
Taking and sharing notes from any formal meetings to avoid misunderstandings and miscommunication
Exploring alternatives to dismissal
Acting consistently where cases are alike
Deciding on an outcome and communicating this clearly with the employee
Providing a right of appeal against the decision

What about prospective employees?

Prospective employees must be told about the requirement to be vaccinated at the start of the application process and must have their vaccination or exemption status confirmed before they enter the care home. This means that anyone attending an interview must provide proof or must be interviewed off-site or remotely.

Where can employees learn more information?

The guidance provides the following resources if employees want to learn more about vaccination:

Where can employees get vaccinated?

Anyone can book a vaccination online through the National Booking Service, by ringing 119, or they can attend one of hundreds of walk-in centres across the country. For more information on the nearest walk-in vaccination centres, see here.