Mandatory Vaccinations in Care Homes – The Insurance Angle

Insight

Published

26 November 2021

The mandatory vaccination regulation, although a positive move for protecting those in Care, has placed huge additional pressure on Care operators.  This has been exasperated by the short time frames in which operators have had to both understand the requirements and ensure compliance. 

The government estimates that around 8-10% of care home workers in England have refused the vaccine[1], leaving operators short staffed and potentially facing difficult situations from an Employment Law perspective. 

Operators facing the implementation of additional controls along with a reduced workforce and/or new staff in need of training may face an exposure to an increase in incidents that could lead to an allegation of negligence.  Insurers provide cover which can help to manage these exposures and as specialist insurance brokers, Howden can provide advice on what insurers would look for in way of risk management and how they are likely to respond in the event of an incident.   

Insurers view on mandatory vaccinations

Liability covers

Firstly looking at liability covers, insurers would look for operators to have fully documented policies and procedures in relation to how an operation is planning to manage the legislation, including the ongoing monitoring of persons coming in and out of the home.  This should include a system to ensure vaccination checks are carried out and documented and those who are exempt are validated as such. 

Insurers standpoint is always that operators should work within the guidelines set out by the relevant government policy and the care regulator.  Should a claim be made following allegations of negligence against you as a result of a COVID-19 infection, insurers would look to use this evidence of your controls to demonstrate good practice and dispute any allegations of negligence.  Remember, although COVID is excluded or limited under many policies in respect of service users and other third parties, cover is active under all Employers Liability policies.  

Employment Law

As far as the Employment Law issue is concerned, although exceptions to the Equality Act 2010 will apply, facilitating the ability to restrict access to a Care Home based on vaccination status, it is still essential that operators can demonstrate decisions have been made solely on the grounds of vaccination status and not inking to any other factors such as disability, age or religion.  Therefore the process of managing potential employment issues should be handled with caution and it is essential operators utilise their Employment Law Protection insurance to gain advice should a difficulty arise. 

Legal Expenses Insurance or an Employment Practices Liability section under a Directors and Officers policy, will usually provide indemnity in respect of defence costs following an allegation of breach of an employment contract.  

Crucially in the first instance, insurers are able to provide legal advice via their helplines which will guide operators to understand the legal standpoint relating to the issue and advice will aim to assist in resolving any dispute amicably.  In the case of the vaccination legislation, the service is invaluable in navigating this uncharted territory. 

Markel Law, Legal Expenses experts, have advised that along with the guidance relating to handling employment related issues, assistance can also been given in relation to complying with data protection legislation when processing information regarding employees’ vaccination status.

A specialist broker will be able to guide operators to information Legal Expenses insurers publish on their policyholder hubs in relation to the mandatory vaccinations and also signpost to when it’s appropriate to call the insurers helpline.

Howden Health & Care work closely with insurers to understand how they are likely to respond to new circumstances as they arise. Since the outbreak of the pandemic this has been essential. 


[1] Mandatory Vaccination Survey, National Care Association, November 2021

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