Temporary medical exemptions for COVID-19 vaccination of people working or deployed in care homes

The Government yesterday announced a temporary exemption to the vaccination of people working in care homes.

The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (the “Regulations”) were approved by Parliament on 22 July 2021 to make vaccination a condition of entering a CQC-regulated care homes in England, unless those persons are able to evidence a medical exemption to the satisfaction of the registered individual. A 16-week grace period was put in place to ensure staff who haven’t been vaccinated could take up the vaccine before the Regulations come into force on 11 November 2021.

The latest statistics show that around 82% of care home staff are now fully vaccinated but there has been some disquiet about those people who are not able to get the vaccine for medical reasons and clarity has been needed as to how the Government was going to ensure that these persons were not disadvantaged.

On a temporary basis, from yesterday, people working or volunteering in care homes and who have a medical reason why they are unable to have a COVID-19 vaccine, will be able to self-certify that they meet the medical exemption criteria. The Government has created appropriate forms for employers and employees to use. Workers who are exempt will need to sign appropriate forms and give this to their employers as proof of their temporary exemption status. This self-certification process is temporary only and has been introduced for a short period until the new NHS Covid Pass system goes live and once this happens, care home workers will need to apply for a formal medical exemption through that process. The ability to use this self-certification will expire 12 weeks after the Covid Pass system is launched.

Who is exempt

While the list is not exhaustive, the Government statement provides some examples, as follows:

  • those receiving end of life care where vaccination is not in the individual’s interests;
  • those with learning disabilities or autistic individuals, or with a combination of impairments which result in the same distress, who find vaccination and testing distressing because of their condition and cannot be achieved through reasonable adjustments such as provision of an accessible environment;
  • those with medical contraindications to the vaccines, such as, severe allergy to all COVID-19 vaccines or their constituents; or
  • those who have had adverse reactions to the first dose (for example, myocarditis).

It is, therefore, clear that there has to be very pressing reasons and an employee who uses the medical exemption without good reason could be the subject of disciplinary action for misleading their employer. However, the temporary exemption is not law and the legal position remains that an individual must provide satisfactory evidence to their employer. That said, whilst the temporary exemption remains, it is difficult to see how an employer would be disadvantaged if they have used it appropriately.

If you would like to discuss this further, please contact Keith Land Partner and Head of the Employment Team on 0191 226 4892 or keith.land@sintons.co.uk.

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