Matthew Hendra, a senior associate, and James Sage, a partner and head of social care at social care lawyers Royds Withy King comment on the Equality and Human Rights Commission’s (EHRC) decision to green light mandatory vaccines in care homes.
EHRC has published its response to the government consultation on making vaccines mandatory in care homes.
The EHRC emphatically supports mandatory vaccines in residential care homes, stating ‘in our view it is therefore reasonable to require care home staff to be vaccinated in order to work directly with older and disabled people’.
One of the key areas of challenge for any requirement for mandatory vaccination would be that it breaches a worker’s right to respect for private life under Article 8 of the European Convention on Human Rights.
This is a qualified right and may be infringed where doing so is a proportionate means of achieving a legitimate aim (such as protecting health).
The endorsement from the ECHR for mandatory vaccination will give the government confidence over the legal arguments and likely paves the way for the government to proceed with its proposals.
It also serves as useful guidance for care providers considering making vaccination a condition of employment.
The ECHR response
The EHRC fully support the national vaccination programme, saying it ‘is an essential step in protecting public health and the right to life and removing significant restrictions to our freedoms, participation in the community, and family lives’.
They concluded that the government’s actions in ‘protecting the right to life has rightly been prioritised’ and ’in legislating for mandatory vaccination the government is right to prioritise protection of the right to life for residents and staff’.
As justification for its position it also noted the effectiveness of vaccines, finding that they provided good protection against serious illness and death as well as some protection against transmission.
Importantly, the EHRC said there must be safeguards to ensure proportionality, as well as minimising the risk of discrimination and breach of workers’ human rights, including:
The ECHR response acknowledges the significant impact that making the vaccine mandatory could have on staff retention in the sector. Vaccine hesitancy is greatest amongst ethnic minority groups and women, who make up a high proportion of the care workforce.
The ECHR recommends that these issues are properly debated in parliament before the Government proceeds with its proposals.
We agree that this is a fundamental issue. The consultation suggests that staff can be “redeployed” if they refuse the vaccine but the reality is that this is not possible in the social care sector, in the way that it is in the NHS, and there is the potential for high numbers of care staff to lose their jobs.
Approximately 20% of the workforce is unvaccinated and the prospect of care providers being forced to dismiss them is a serious concern. Recruitment is already a significant challenge and there are over 100,000 vacancies already existing in the sector.
What happens next?
We await the government’s decision on whether it plans to amend the Health and Social Care Act to make vaccinations a legal requirement in residential care homes.
If the proposal is implemented, the government’s proposal is that care managers will be required to carry out checks to ensure its workforce are vaccinated or medically exempt.
This could create a significant additional administrative burden on managers and it is imperative that an effective system is put in place to make it workable in practice.
CQC will be tasked with enforcement and the consultation envisages that vaccination rates will be used by CQC to determine which homes to inspect.
Should employers introduce mandatory vaccinations now?
Employers coming within the scope of the current government proposal should wait for the government decision wherever possible.
Other employers who wish to implement mandatory vaccines now would be wise to follow the EHRC’s approach in carefully weighing up the effect on workers’ and customers’ rights.
Legal advice should be taken on the process of implementing mandatory vaccinations and how to minimise the risk of claims, including:
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