No jab, no job? Vaccination requirements for care home staff

Written by Lisa Forsberg and Isra Black

Last night the Guardian was first to report that staff working in older adult care homes will be required to get vaccinated against Covid-19. According to BBC News, ‘Care staff are expected to be given 16 weeks to have the jab—or face being redeployed away from frontline care or losing their jobs’. This announcement follows news reports over the last few months that the government have been considering making Covid-19 vaccination mandatory for staff working in older adult care homes in England. As part of this process, an open consultation on vaccination for older adult care home staff was held in April and May of this year, to which we responded.

While we think a vaccination requirement for older adult care home staff may be a necessary and proportionate measure, we nevertheless have concerns about the government’s proposed policy.

Voluntary vaccination uptake has so far been very high in the UK, but importantly, uptake may need to be very high in order for those who cannot get vaccinated (eg for medical reasons) or for whom vaccination is not sufficiently effective to be protected. The consultation document notes that ‘experts on the social care working group of SAGE advise 80% of staff and 90% of residents need to be vaccinated to provide a minimum level of protection against outbreaks of COVID-19’). Some care homes have reported that a significant number of their staff have expressed reluctance to get vaccinated (there are similar reports from other countries, for example, Sweden). At the time of the consultation, it was reported that ‘[o]nly 53% of older adult homes in England are currently meeting this threshold’, meaning that ‘nearly half of all care homes with older adult residents, home to 150,000 vulnerable people, don’t meet SAGE’s recommended vaccination thresholds for care homes and staff’. The staff vaccination rate was ‘below 80% in 89 local authority areas—more than half—and all 32 London boroughs’, with 27 local authority areas having a staff vaccination rate below 70% (the most recent statistics on staff and resident vaccination rates can be found here).

Some care homes have already moved towards making Covid-19 vaccination mandatory for their staff. Barchester Healthcare care home group, who run over 200 care homes, announced earlier this spring that they would require all their staff who did not have medical reasons not to get vaccinated to have had their first dose of a Covid-19 vaccine by 23 April. Similarly, Care UK, another one of the UK’s largest care home operators, has adopted a ‘no jab, no job’ policy for new starters, that is, requiring all new employees get a Covid-19 vaccine before starting working for them in a care role. According to Health Secretary Matt Hancock, ‘many’ care homes have asked for a vaccine requirement to be instituted for staff.

Others are also cautiously positive about the proposal. For example, UK’s human rights watchdog the Equality and Human Rights Commission (EHRC) have endorsed the idea of a vaccination requirement for older adult care home staff, stating in their consultation response that the government was ‘right to prioritise protection of the right to life for residents and staff’.

We, too, are generally in favour of a vaccination requirement for care home staff, though we have some concerns about the government’s proposal.

Arguments for vaccination of care home workers are compelling. Vaccination is a key public health tool for the purposes of pandemic and endemic disease control. It is not obvious that individuals have a right to refuse vaccination for infectious diseases when such refusal poses a significant threat to the health and lives of others. As Hancock noted: ‘because people who are looking after elderly residents in care homes, who we know to be the most vulnerable to Covid, they have a duty of care not to pass on the disease and it is a reasonable question’. A proportion of care home residents might not be able to get vaccinated, for example, for medical reasons. Moreover, for some of those who are vaccinated, vaccination will not be sufficiently effective to ensure their protection. Vaccines do not offer 100 per cent protection. In addition, those already vaccinated might be at risk from new coronavirus variants, against which existing vaccines may be less effective. Care home residents often cannot avoid being exposed to risks if care home staff are unvaccinated. Residents cannot socially distance from staff or exit the care home. Care home residents will often be in close contact with staff and are in a position of (often extreme) dependency. The best way of ensuring that those who cannot be vaccinated or for whom vaccination is not sufficiently effective are protected is for as many people as possible (who can) to be vaccinated.

Moreover, vaccination is an undemanding requirement for staff. Approved Covid-19 vaccines are very safe and effective. Many of us dislike injections, but they are mostly a brief and trivial interference. It is beneficial for staff themselves to be vaccinated, since younger people can be severely affected by Covid-19, both in terms of acute disease and in the form of long-term health complications, including long covid, organ and neurological damage, and so on. We are not, then, by requiring staff to get vaccinated, asking them to do anything that is not already in their best interests, all things considered. We agree, therefore, that a vaccine requirement for workers in care homes may be a necessary and proportionate measure given the impact of the Covid-19 pandemic on residents, including the high rate of infection and the high case fatality rate, and the favourable cost-benefit ratio to most staff of being vaccinated.

However, the government’s proposal is not without issues. One concern we have relates to the proposal to limit this policy to older adult care homes. Is this clinically justified? It is well known now that older adult care homes in particular were very badly affected in the beginning and throughout the pandemic, until residents were able to get vaccinated. But we need to make sure that the focus on older adult care homes is still justified in light of the evidence regarding current spread and risks. Given that a vaccination requirement for staff would likely interfere with important interests protected by human rights law (even if interference would likely be justified), the government should take care to ensure that the evidence base for mandating vaccination in care homes is contemporary, as opposed to historical, taking account of, for example, more recent evidence regarding risks to younger people from contracting SARS-CoV-2. It is plausible that there are other care home settings in which Covid-19 transmission would give rise to bad outcomes that are on a par with those in older adult care home settings, for example, those facilities that provide residential or supported living care to individuals with Down syndrome. A further worry relates to care homes in which there are residents who lack capacity and for whom it has been determined that vaccination is not in their best interests (see eg the recent case of SS v LB Richmond on Thames and SWL CCG [2021] EWCOP 31). These individuals in particular cannot be protected by vaccination and as such it is incumbent on care providers to take protective measures. And there is a consistency worry. While the government in the consultation document has explained why it thinks other adult care home settings may warrant Covid-19 vaccine requirements compared to other care settings, it has not sufficiently explained why care settings are relevantly different to health settings where Covid-19 vulnerable populations receive treatment. Care home staff and providers may feel unfairly singled out.

Even if we assume that there is an adequate direct justification for limiting vaccine requirements to older adult care home settings, we have a worry in respect of the policy that is indirect in nature. As the consultation document observes, a high proportion of care home staff are from a minority ethnic background, who for various reasons may be more vaccine hesitant. The consultation document also proposes that care home staff who refuse Covid-19 vaccination may be ineligible for work. Clearly, the government is alive to the risk of exit from the care home sector. However, if Covid-19 vaccination is not mandated across the entire care sector, it seems more plausible that older adult care home staff who are unwilling to be vaccinated as a condition of employment will move to care providers in areas where there is no vaccine requirement. This will transfer risk onto other vulnerable populations elsewhere in the sector. But it perhaps also undermines any thought that individuals will accept vaccine requirements because they need work. It is well known that the care sector faces severe staff shortages, and as such the notion of ‘jab for job’ reflects a false, binary choice available to staff in older adult care home, when more options would be available to them.

A second concern relates to the proposed modality of legal change. If the proposal in the consultation is followed through, the government will introduce vaccine requirements through an amendment to Regulation 12 (Safe care and Treatment) of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. The government’s proposal would not involve any changes to public health law, which currently rules out the imposition of medical treatment, including vaccination. Vaccine requirements are a public health measure that is likely to provoke controversy. As such, it is preferable for the government to introduce primary legislation so that a rigorous public justification can be offered for a change in the law, and so that the measure, if passed would enjoy greater public understanding and democratic legitimacy compared to the use of secondary legislation.

A third concern relates to the justification offered for vaccine requirements in this context. The government has leaned heavily on the analogy to the practice of requiring Hep B vaccination as a condition of employment for health care staff who perform exposure prone procedures. But analogies can only take us so far. It is important for the government to engage with and articulate the justification for vaccine requirements justification in human rights law and equality law terms. That is, its compliance with, among other things, article 8 of the European Convention on Human Rights (ECHR), which provides for extensive freedom to refuse medical treatment, and the Equality Act 2010.

As we have discussed in other written evidence submissions on mandatory vaccination and on Covid-19 vaccination certification, vaccination requirements can be ethically permissible and compliant with human rights law. While vaccination requirements would likely interfere with individuals’ rights to private and family life under article 8 ECHR, which among other things protects against interference with personal autonomy, including individuals’ right to refuse medical interventions, article 8 is a qualified right, so interferences with it can be justified when they pursue a legitimate aim in a way provided for by law and are proportionate. The aim here is to protect life and health, and the rights and freedoms of others. In addition to the risk of mortality that SARS-CoV-2 infection poses to individuals, there are still many uncertainties regarding morbidities and long-term health effects. The state has a positive obligation to protect the life and health of individuals within its jurisdiction. Care home residents are vulnerable and will often be unable to protect themselves or avoid or minimise the threat to them posed by unvaccinated individuals. A vaccine requirement for care home staff, therefore, seems to be a proportionate way to pursue the aim of safeguarding life and health. So a vaccination requirement for care home staff could be ethically permissible and compliant with human rights law.

In respect of equality law, the government should consider the potential for legal challenges to the vaccine requirement policy on grounds of indirect discrimination. The government proposes to exempt only those individuals who have clinical reasons for remaining unvaccinated against Covid-19 (assuming the absence of supply issues). But we might expect minority ethnic care home staff to be particularly impacted by this policy, given the apparently higher prevalence of vaccine hesitancy among this population. The government should consider, therefore, whether to permit exemption from Covid-19 vaccine requirements on religious or belief grounds in order to proof the policy against potential challenges under the Human Rights Act 1998 or the Equality Act 2010. We discuss vaccination requirements and the Equality Act 2010, including reasoning regarding exemptions, in our previous blog post on vaccination requirements for pub goers. Even if such exemptions are not afforded, consideration of the issue will provide a justification for the measure that is more likely to withstand legal scrutiny.

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