The Government has launched a new NHS Covid Pass system which individuals are expected to use as evidence to confirm their Covid and vaccination status, and to apply for a permanent medical exemption from receiving the vaccine.
This will be particularly important for care home workers/volunteers in England who have submitted a self-certification form for a temporary medical exemption from the Covid vaccine and need evidence of a permanent exemption before the expiry of the self-certification to allow them to continue working inside the care home.
Self-certification of medical exemption is valid for 12 weeks starting with the date the NHS Covid Pass system was launched. The launch took place on 1 October 2021 which means the 12-week temporary exemption period is now running. Therefore, evidence of official exemption is needed by 24 December 2021; people who have not produced evidence of official exemption (including short-term exemptions) by that date will need to be redeployed or dismissed by the care home. However, employers should keep in mind that a full and fair dismissal process must first be completed before any action is taken in order to safeguard against employment tribunal claims for unfair dismissal.
Applying for permanent medical exemption
The Government confirms that the following will be eligible for medical exemption:
people receiving end-of-life care where vaccination is not in the person’s best interests
people with learning disabilities or autistic individuals, or people with a combination of impairments where vaccination cannot be provided through reasonable adjustments
a person with severe allergies to all currently available vaccines
those who have had an adverse reaction to the first dose (for example, myocarditis).
Short-term exemptions will be available for people with short-term medical conditions, eg people who are receiving hospital care, waiting for an operation or on medication which could interact with the vaccine.
Pregnant women will also be given a short-term exemption. This will expire 16-weeks after the birth to give them time to become fully vaccinated. Pregnant women do not need to apply for a NHS Covid Pass; they can use their MATB1 certificate as evidence of exemption. In practice, employees on maternity leave may choose to wait longer to get the vaccine because they do not intend to return to work within that 16-week period but employers must ensure they are fully vaccinated by their return date. If not, the redeployment should be considered before dismissing them. Women on maternity leave who are not fully vaccinated cannot enter the care home they work in once this 16-week period has passed unless they are fully vaccinated.
To apply for a permanent medical exemption, individuals should phone the NHS Covid Pass service on 119 and ask for an application form. They will need to give their name, date of birth, NHS number (if known) and the name of their GP/clinician. If they are eligible, they will receive an application form by post. This form should be completed by the individual and submitted to their GP or relevant clinician for review. Individuals will automatically be sent the results of their application by post 2–3 weeks after applying. The decision is final and cannot be appealed.
Employers will not be directly involved in the application process but might want to remind their workforce to use this.
Using the NHS Covid Pass
If individuals get a permanent medical exemption, they can use the NHS Covid Pass to show evidence of this. The Pass can be accessed digitally on the NHS app or through the NHS website. A paper version will also be available.
The NHS Covid Pass will look and work the same for people with medical exemptions as it will for people who are fully vaccinated. The pass will not show that someone has a medical exemption. Employers only need to receive the pass to allow their staff to keep working in the care home, regardless of whether they got it due to vaccination or exemption.
The rules will allow a service provider to process information provided by a person wanting to prove their vaccination status, in accordance with the Data Protection Act 2018.
Employers will need to continue to consider how to mitigate exposure to and transmission of Covid for exempt employees. This might include equipping them with adequate protection measures, such as PPE, masks and hand sanitisation, etc or limiting their contact time with service users.
Self-certification is not always a necessary step in the process; individuals may skip that part and move directly to obtaining official full exemption by 11 November 2021. However, self-certification gives individuals more time to obtain the official evidence they need.
What happens if permanent medical exemption is denied?
There does not appear to be anything in the Government guidance to say that an employee will have to leave their care home role straight away if their application for permanent medical exemption is refused. It is expected that they will still have until the end of the 12-week self-certification period before they have to be redeployed or dismissed. Employers should use this time to assess whether there are any alternative roles the person could do and prepare for hiring replacements into leavers’ positions.
Dismissing unvaccinated employees without a medical exemption
Rules on fair dismissals will still apply in these circumstances. This means that an employment tribunal can still find that a non-medically exempt employee, dismissed for being in breach of the requirement to have the vaccine, was unfairly dismissed. This is likely to occur when the procedure used to dismiss the employee was defective; holding meetings with employees, setting out what will happen if evidence is not provided and exploring redeployment will be essential.
Individuals working inside the care home must be made aware of the need to obtain evidence of either full vaccination or medical exemption.
Ultimately, there are two key deadlines to keep in mind:
10 November 2021 — last day for production of evidence of full vaccination/official medical exemption where self-certification of temporary exemption not already submitted.
23 December 2021 — last day for production of official medical exemption where self-certification form for temporary exemption previously submitted.