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Lawyers cast eye over care home vaccinations

The UK’s vaccine rollout programme is a major success story, but vaccinations remain a complex area for care homes.

Mills & Reeve’s healthcare regulatory lawyer Amanda Narkiewicz says the care sector is divided on the line to take, with providers choosing different approaches to protect staff and residents.

There is also vaccine hesitancy among some care home workers who have opted not to have the vaccine.

You can hear more about this on our latest Legal Special podcast.

So, how are vaccinations being addressed so far by care providers?

Care UK has adopted a “No jab, no job” policy requiring all new staff who are required to work within a home to have a vaccine before they start work.

Similarly, MHA, the largest not-for-profit care home chain, is “being explicit with new staff that we want all of our frontline colleagues to take up the vaccine”. However, it will not require new starters to prove it.

Amanda Narkiewicz

Bupa is still considering its policy for staff in its care homes.

“Leading care provider Barchester has introduced a new policy expecting all workers to have had the vaccine by 23 April 2021,” said Narkiewicz. “Although the care home operator is prepared to delay the deadline if any data regarding safety, efficacy or effect on transmission which requires further review.”

Barchester has set out a number of acceptable exemptions, including pregnancy, and noted that exempted staff will operate with enhanced PPE.

So where do care providers stand legally as employers?

“Parliament has not legislated to make vaccination compulsory for health and care workers although reports suggest that government is “seriously considering” a policy,” said Narkiewicz. “However a compulsory vaccination policy does go against the grain of the well-established legal principle that freely given consent is required for lawful medical treatment in England and Wales.”

She added: “Equally, the Health and Safety at Work etc Act 1974 is unlikely to assist employers wanting to require staff to have a vaccination.”

In the absence of new legislation, providers must decide whether to make vaccination a condition of employment.

“But that’s not straightforward. Any provider considering this approach should seek legal advice.”

Narkiewicz is joined on the podcast by Hempsons partner Philippa Doyle.

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