OUT-LAW ANALYSIS 7 min. read
05 Aug 2021, 8:55 am
The UK government will require people working in care homes in England to have been vaccinated against Covid-19, subject to limited exemptions.
France has agreed on similar legislation affecting healthcare professionals, but analysis by Pinsent Masons, the law firm behind Out-Law, suggests other governments across Europe are unlikely to introduce similar plans of their own at this stage.
The UK government recently introduced new legislation, effective from 11 November 2021, that requires people working in care homes to be Covid-19 vaccinated. The government said its decision was taken following extensive public consultation with staff, providers and residents alike. Mandatory vaccination is designed, according to the government, to ensure care home residents are better protected from the risk of death and serious illness that can arise from contracting Covid-19.
Joanne Ellis
Partner, Head of Transactional Services
The 11 November 2021 implementation date does not leave a lot of preparation time for care providers and so it is recommended that they begin conversations with staff needing vaccinations now
The new legislation will take effect on 11 November and, subject to parliamentary approval, will apply to all Care Quality Commission-regulated service providers of nursing and personal care, in care homes in England. The rules will mean that anyone seeking to work in such a care home will have to have been double vaccinated. The duty will apply not only to employees, but will also extend to all agency workers, volunteers, healthcare workers and tradespeople that might be engaged by the home. Those medically exempt will not have to be vaccinated and, similarly, any visitors of care home residents will also be excluded from the new requirements. The Department of Health and Social Care issued guidance on the matter on 4 August.
The 11 November 2021 implementation date does not leave a lot of preparation time for care providers and so it is recommended that they begin conversations with staff needing vaccinations now. Where relevant, it may also be prudent to engage with and seek support from any recognised trade union when undertaking these conversations. Procedures will need to be put in place to deal with staff who, by the implementation date, have not yet had both vaccines – in this context, it may be that redeployment or a temporary cessation of duties needs to be considered.
Given the significant difficulty that there has been in recruiting into the sector over the last few years, there is a feeling of discontent surrounding the new requirements and concern that people might be put off from working in a care home, thus increasing the strain on already limited resource.
Whilst it has been discussed at government level in the Netherlands, the conclusion was that nobody can be forced to have the vaccination
The policy of mandatory vaccination in the health and social care sectors is under consideration in other parts of Europe too, though, as experts from some of Pinsent Masons’ European offices explain, the position is different in each jurisdiction.
Valérie Blandeau
Partner, Head of Office, Paris
From 15 September 2021, healthcare workers must be vaccinated, otherwise they will be prohibited from working
Machteld Hiemstra of Pinsent Masons in Amsterdam said: “There are people, including health care workers who are not willing to take a Covid-19 vaccination. At the time of writing, the younger someone’s age, the lower the vaccination uptake. However, that fact is also a product of the order in which people in the Netherlands are being offered the vaccine: 92% of people aged 65 or over have had the vaccine, compared with just 29% of those aged between 17 and 29.
Inmaculada Castelló of Pinsent Masons in Madrid said: “Despite European governments rethinking their Covid-19 strategies after the fast-spreading Delta variant´s appearance, Spain remains one of the developed countries where citizens have the most confidence in coronavirus vaccines – this according to a study carried out by Imperial College London based on surveys conducted among more than 68,000 people in 15 countries. At the time of writing, 78% of Spanish citizens, and more than 90% of healthcare workers, have said that they have confidence in the coronavirus vaccines.
Volker Balda of Pinsent Masons in Frankfurt said: “At the start of the vaccination campaign in Germany, there was a lot of public debate around problems with the uptake of Covid-19 vaccinations, especially related to concerns raised about the AstraZeneca vaccine. Since then, the level of reporting about problems with vaccinations has decreased, however there still appears to be some general scepticism in parts of the German population with respect to potential unknown risks involved in the Covid vaccines. As a result, vaccine uptake is comparatively low.
Valérie Blandeau of Pinsent Masons in Paris said: “In France there appears to be a lot of vaccine scepticism which is a real concern for the French government. In response, to encourage the population to be vaccinated, several measures were rolled out at the end of June and future measures were announced on 12 July 2021. Employers have been encouraged to promote vaccination, in particular by allowing their employees to be vaccinated during their working hours and from now on, the health pass (pass sanitaire) will aim to promote access to leisure and cultural venues for vaccinated people from the end of July.
There are no proposals at present to enforce vaccination in Spain since the Covid-19 vaccines acceptance is exceptionally high among the Spanish population
Machteld Hiemstra said: “Whilst it has been discussed at government level, the conclusion was that nobody can be forced to have the vaccination and the starting point is always that medical treatment cannot be imposed. To do so is considered a violation of article 11 of the Dutch constitution – the right of individuals to inviolability of their person – and article 8 of the European Convention on Human Rights concerning individuals’ right to privacy. As a result, even requesting evidence of vaccination is prohibited.”
Inmaculada Castelló said: “In Spain, Organic Law 3/1986 sets out the grounds for the competent health authorities to establish compulsory vaccination when there are reasonable grounds to believe that there is a danger to the population´s health, which is an exception to the general right patients enjoy under Spanish law to reject any treatment or healthcare measure. Notwithstanding this, there are no proposals at present to enforce vaccination in Spain.”
Volker Balda said: “The current decreasing willingness within the German population to get vaccinated, together with an increasing fear that a rising prevalence of the Delta variant may result in a need for stronger restrictions or another lockdown in autumn, has fuelled the debate about the need to force people to have the vaccine. This debate has predominantly focussed on those in educational and healthcare settings. However, the German government’s position continues to be that no such general obligation will be implemented.”
Valérie Blandeau said: “The requirement that French citizens possess a health pass to access a range of services – from leisure facilities to cafés, restaurants and bars, shopping centres and public transport for long journeys, for example – is expected to encourage vaccine sceptics to get vaccinated. Employees in these settings will therefore be required to present a health pass to their employer, otherwise they will be unable to perform their job. They can do this either through regular testing or vaccination.”
“In the healthcare sector specifically, new legislation is expected to be finalised shortly requiring healthcare workers to be vaccinated by mid-September. The underlying bill was passed by the French parliament on 25 July, but it still being considered by the Constitutional Council, which is due to issue its decision on 5 August. Under the bill, vaccination against Covid-19 would be compulsory for people working in the health and medico-social sectors, unless they are medically exempt. Staff who have not been vaccinated will have until 15 September 2021 to do so. If they are not vaccinated in time, employees and public servants may be suspended without pay,” she said.
A constitutional challenge has been lodged in Germany against a law imposing compulsory vaccination against measles in some settings. A decision is expected later this year
Machteld Hiemstra said: “No person can be forced to have a vaccination in the Netherlands, and nor have they been in the past. There is no exception for employees working in the health care sector. That said, this does not necessary preclude an action by an employer if the danger of contamination were to outweigh the right of the employee not to take a vaccine. Ultimately it would be for a judge to decide whether mandating vaccination in that context was justified, based on the facts and a balancing of all interests.”
Inmaculada Castelló said: “There is only one precedent in Spanish legislation providing health authorities with the power to decree compulsory vaccination. A 1980 law provides that vaccinations against smallpox and diphtheria and against typhoid and paratyphoid infections could be declared compulsory by the government if the number of cases of these diseases justified such an intervention, or in cases of a current or foreseeable epidemic situation. Nonetheless, mandatory Covid-19 vaccination seems unlikely and, in my opinion, would not have a positive impact on the population´s attitude towards such vaccines. Acceptance is already high enough to achieve herd immunity in Spain and adopting such measures would have no other effect than to generate mistrust among the population.”
Volker Balda said: “Under the Measles Protection Act which came into force March 2020, children visiting schools or childcare facilities, and most people working in the childcare or educational sector as well in medical facilities, are generally obliged to get vaccinated against measles. There is, in principle, no doubt that an obligation to have a vaccine against a certain disease can be justified. However, it requires a very thorough balancing of the various interests involved – in particular, the benefits of obtaining community protection versus the individual constitutional right on freedom of action. A constitutional complaint against this Act is pending decision later this year.”
Valérie Blandeau said: “It was recently announced that vaccination against Covid-19 is to be made compulsory for healthcare workers. This obligation will apply to all healthcare personnel in the public and private sectors concerned, for hospital staff as well as home helpers, except in cases of medical exemption. From 15 September 2021, healthcare workers must be vaccinated, otherwise they will be prohibited from working. Compulsory vaccination for healthcare workers already exists in respect of other infections, such as hepatitis B, diphtheria, tetanus, poliomyelitis. Until 2006, healthcare professionals also had to be vaccinated against influenza, but this obligation has been suspended.”
Additional research by Astrid Berthomieu of Pinsent Masons.
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