By Abigail Holt of Garden Court Chambers.
Currently (until 11 November 2021) there is no law that says that people must have a COVID vaccine.
However, the British Government and many other national and international organisations very strongly advise everyone offered a vaccine to have one (usually followed by a second booster vaccine a few weeks later) and are encouraging people to attend clinics to have the vaccine and boosters.
On 4 August 2021, the Department of Health & Social Care published its latest guidance: “Coronavirus (COVID-19) vaccination of people working or deployed in care homes: operational guidance”. Vaccination of people working or deployed in care homes: operational guidance - GOV.UK (www.gov.uk)
The “headline” summary is that the UK Government:
“want to ensure that care homes are as safe as possible for the staff working in them and the people they care for. [And that they] believe that the best way to do this is to ensure that everyone who can take up the offer of vaccination, does.
Vaccination offers the best protection against the virus both for staff and care home residents. From 11th November 2021, all care home workers, and anyone entering a care home, will need to be fully vaccinated, unless they are exempt under the regulations”.
The reason for the delay until 11 November 2021, is to give affected people the opportunity to get two doses of the COVID vaccine.
Who is the change of law going to impact immediately?
As things stand, the law only applies to care home workers. However, it might be that other workers and other areas of enterprise will be subject to similar changes in the law in future to make vaccination mandatory, so what happens with the care sector is likely to inform other sectors.
From 11 November 2021, the law will change in England to implement the compulsory vaccination rule. The new law is The Health and Social Care Act 2008 (Regulated Activities)(Amendment)(Coronavirus) Regulations 2021. The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (legislation.gov.uk)
What about care sector workers who cannot or do not want to be vaccinated?
Whilst the rationale of the requirement for compulsory vaccination of care sector workers looks reasonable because it is designed to protect vulnerable clients/patients as well as other staff and the vaccinated individuals, it is obvious that the change in law could be used by unscrupulous employers in a way that penalises some individuals. There are lots of reasons why an individual might not want to be vaccinated. For example, some people cannot take time off work to get vaccinated; might be vulnerable to losing paid work if the vaccine makes them feel ill and they need to take sick leave; for others time off for vaccination or connected illness could trigger disciplinary procedures; there are people who have pre-existing medical conditions who are advised by their treating doctors not to get vaccinated and so are “exempt”.
It is very arguable that in the special circumstances of each individual, mandatory vaccination should be considered within the context of the requirement for everyone to be treated with dignity. What this means in individual cases depends on the facts of each case.
Is vaccination a matter of individual rights and preferences?
As the law stands, no one can be forced to have a vaccine against their will. However, some people’s particular circumstances might make them feel that they are obliged to be vaccinated.
Central to understanding COVID and the issue of vaccinations is understanding the context that COVID affects everyone, and so the reasons for vaccination are not just about individual rights and preferences.
Advice for people to be vaccinated is driven by legal duties (and ethical concerns) that government, organisations and employers owe duties of care.
Duties are care are owed by employers to:
- All their employees
- Anyone who the employees work with (including clients or members of other organisations)
- People who come onto their premises, e.g. tradesmen or visitors to a care home
A practical problem, though, is that the duties of care to one group may conflict with duties towards another and so the legal rights of one group will have to be weighed against the legal rights of others.
From November 2021, people working or volunteering in certain Care Quality Commission (CQC) registered care homes in England will have to be vaccinated by law. However, even then, certain people with connections to those care homes will be exempt, including anyone with a medical exemption.
Consequently, the government are actively encouraging care homeowners and managers to persuade all their staff to get vaccinated. The government envisage that “support” should be given to people needing a vaccine, such as opportunity within the working day or paid leave to get vaccinated.
Employers are been told to listen to concerns expressed by employees who are reluctant to be vaccinated and to be careful to avoid discrimination between those who are vaccinated and those who are not.
Organisations such as ACAS and trade unions are urging employees to discuss concerns about being vaccinated and to try to get employers to devise COVID vaccination policies that the workforce are content with.
First steps if you have concerns about being vaccinated, do not want to be vaccinated or believe that you cannot be vaccinated in time for 11 November 2021:
- Urgently speak with your GP in order to document your concerns and, if appropriate, get evidence that you are exempt from vaccination.
- Write a basic letter or email to your employer and ask for a meeting to discuss your concern. For example, you might work in the kitchen, laundry or garden of a care home and do not understand why or if vaccination is relevant to you.
- Consider asking for paid leave in order to be vaccinated (not just SSP) and/or paid leave if you end up being one of a minority of people who have a reaction to the vaccination that leaves feeling fatigued and unable to work for a day or two.
- In advance, seek assurances that any time off generated by vaccination does not trigger any absence systems.
- Discuss with your Trade Union and/or employer concerns that you have that your personal medical data relating to the vaccination are kept confidential and that data protection law (GDPR) will be followed rigorously.
- Work with colleagues, managers and any trade unions to devise a policy that will work for everyone in relation to vaccination.
- Don’t bury your head in the sand! 11 November 2021 will come round very quickly and most people need a two-month gap between the first and second vaccination!
At Garden Court we are experts in the law relating to COVID disease as it is evolving; in the many ways that it is affecting our many legal relationships with other individuals, organisations, employers and the state. We are experts at understanding, explaining and arguing about the consequences for novel legal problems.
COVID-19 vaccination: guide for employers - Preparing for the COVID-19 vaccination: guide for employers | Guides | CIPD (Chartered Institute of Personnel and Development)
Background information and context
Important information to understand why COVID vaccinations are so important.
The reason for the advice and encouragement strongly in favour of vaccination is because vaccinating as many people as possible protects:
- Vaccinations protect individuals who have had the vaccine;
- Vaccinations protect people who come into contact with vaccinated people;
- Vaccinations reduce the need for medical treatment for COVID illness, thus creating less work for hospitals and healthcare professionals; and
- If the virus finds that it cannot be spread around it is harder for the virus to mutate and change into new versions that could overpower the antibodies created by the vaccination.
- So, if the virus’s opportunities to mutate are reduced, then the hope is that the virus will slowly fade away.
Nonetheless, the vaccine is not completely fail-safe, and so there is understandable fear and reluctance in some people who do not want to have a vaccine. (Actually, it should be “vaccines” because there are slightly different ones made from different “recipes” by different manufacturers: e.g. (Oxford) Astra Zeneca, Pfizer, Johnson & Johnson, Moderna). Some people get a mild form of COVID when they have the vaccine. Because the COVID vaccines are so new, no one knows the precise long-term effects of COVID vaccinations, although the science of vaccinations is well-established and a great deal is predictable.
As things stand, there is good evidence that COVID vaccines work:
- People who have had COVID vaccines get less ill if they are unlucky enough to get COVID and are far less likely to end up in hospital or die of COVID.
- People who have had COVID vaccines are less likely to pass COVID on to other people.
- Whilst some people have an adverse reaction to having a COVID vaccination the effects are short-lived and minor compared to the risks of getting ill with full-blown COVID infection.
As mentioned above, some people may have been advised not to have the vaccine for good health reasons – they are “exempt” - and in circumstances where such individuals are not obliged to share confidential information about their health status and pre-existing medical conditions, particularly with employers.
Law versus government advice?
The Law, on the one hand, and general government advice on the other, are two very different things. Mostly, the government keeps out of health matters; these are usually considered to be private issues between individuals and their healthcare providers. However, laws have existed for a long time to stop the spread of infectious diseases to protect the population at large. In extreme cases, people can even be prosecuted for deliberately or recklessly spreading lethal diseases. So, law to stop the spread of COVID was/is not surprising.
The reason why decisions around COVID vaccination can be difficult though, is because, for some people, there is a clash between what is best for them, or what they would prefer to do, as against what is best for the population generally and public health planning to stop the spread of COVID.
Knowledge is power. In order to understand the law and advice relating to COVID vaccinations, it is important to understand the “modus operandi” of COVID, some of the “sneaky” ways that COVID gets spread around and who is most at risk.
- The government has been offering COVID vaccines in the order of those most at risk of dying or being seriously ill if they developed COVID. This is linked to age and individuals’ underlying, pre-existing health problems.
- It needs to be remembered that there is a well-known risk of acute COVID illness, but a new condition of “long COVID” has been identified about which knowledge is still evolving. “Long COVID” occurs in some people who seem to have a reaction to COVID which leaves them very ill and disabled with varied symptoms and fatigue even when the acute phase of the illness has passed.
- The infecting COVID virus is mainly a respiratory disease which is passed on by tiny particles floating in the air, or “aerosols”, generated from the back of the throat of an infected person as they breathe out, talk, cough, sneeze or sing. COVID virus can also easily fall onto surfaces and be picked up by others’ hands, and so the virus can infect a new person if that person has contaminated hands and touches their mouth, eyes or face. However, the most successful route by which COVID transmits itself is when someone breathes in COVID-infected air for a prolonged period such that they breathe in a “viral load” which overwhelms their ordinary, natural immune system and they get ill fighting a big dose of COVID virus (in the same way that people pick up a bad cold or flu).
- The best way to avoid COVID infection is to be in the company of other people outdoors as much as possible and only be indoors with other people in well-ventilated spaces, so that COVID does not build up in the air. Also, keeping at least 2 metres from other people is a big help. Wearing a mask protects the mask-wearer and anyone sharing their breathing space.
- The big problem with COVID is that, unlike flu or colds, it is a brand-new pathogen for humans, so there was no natural immunity. People who are vulnerable (usually due to age or pre-existing illness) just do not have a strong enough immune system to fight COVID off. Some people are vulnerable for reasons unknown, even if they are young, fit and healthy. This is where the vaccines come in. They give the body a “taste” of the virus, enable it to make a store of cells to fight off COVID if infected for real, and so help the body to be able to fight COVID without becoming so ill or even dying.
- Another very difficult feature of COVID - one of its “sneaky” characteristics – is that some people get COVID and it does not affect them. They have no symptoms (are “asymptomatic”). Such “asymptomatic” carriers carry on with life and infect other people without anyone realising. Also, some people who go on to realise that they have COVID symptoms go through a period when they are highly infections before they know – in the “pre-symptomatic phase. Again, they unwittingly infect other people before they realise that they are infectious.