The Government has announced its plans to introduce new legislation requiring those deployed in frontline roles in the health and wider social care sector in England to be fully vaccinated against Covid-19. This follows the same requirement already in place for care home workers in England and the responses of a public consultation into the matter. Despite the majority of respondents being opposed to such mandates, the Government decided that vaccination is the best way to protect vulnerable people receiving care in the sector and those providing it.
Who is affected?
The new regulations will apply to anyone deployed to undertake a CQC-regulated activity in the public (NHS) and independent health and adult social care sectors. This includes volunteers, agency workers, students and contractors who have face-to-face contact with patients and who are directly involved in patient care. For example, doctors, nurses, dentists and domiciliary care workers who provide in-person care to those in need in their homes. They will also apply to some ancillary staff, such as porters and receptionists, who may have social contact with patients. Hospitals, pharmacies, GP surgeries, dental practices, ambulance trusts, mental health establishments and community care organisations are amongthe affected settings.
The regulations, subject to parliamentary approval, will come into force on 1 April 2022. Failure to provide evidence of vaccination or exemption must result in redeployment to non-frontline roles where this is possible, or dismissal where it is not. It is expected that there will be an increased focus on redeployment for all affected workers; dismissal should only be considered as a last case resort after exhausting all other options.
The consultation separately considered whether the affected category of workers should also be required to have the flu vaccine. It was confirmed that this requirement will not be introduced, but the decision will be kept under review with the potential for it to become regulation at a later date if needed.
Are there any settings that are not included?
Where the provision of a CQC-regulated activity is part of a Shared Lives agreement, the vaccination requirements will not apply. This is when the care recipient lives in the home of the carer.
It will not apply to friends or family members who visit people in health and social care settings or a person’s home. It will also not apply to those in a role of “essential care giver”. This is anyone who has agreed with the registered person that they will visit regularly and provide personal care.
Similarly, the regulations will not be extended to CQC-regulated activities carried on in residential or in-patient settings. For example, residential recovery services for drugs and alcohol, hospices and registered extra care and supported living services.
Will there be any exemptions?
Medical exemptions will be given where vaccination is not clinically appropriate, for example, for individuals with pre-existing medical conditions or allergies. The Government has said it will provide more detailed guidance, but it will likely follow the exemptions which are already in place for CQC-regulated care homes, in line with consultation from the JCVI and the Green Book on Immunisation against Infectious Disease.
Those with short-term medical conditions and pregnant workers are allowed a short-term medical exemption. For pregnant women, this exemption will expire 16 weeks post-partum. Affected staff should use the NHS Covid Pass Service to apply for a permanent medical exemption.
Additionally, those who are taking part, or have previously taken part, in a clinical trial for a Covid vaccine will be exempt, as well as workers who are under the age of 18. No exemption will be given to those who refuse the vaccine due to religious beliefs.
What about international workers who were vaccinated abroad?
Health and care workers will need to have received a full course of a Covid vaccination in line with the UK Health Security Agency (UKHSA) guidance, in order to continue to be deployed. An authorised vaccine is two doses of either the Oxford/AstraZeneca, Pfizer BioNTech, Moderna or Janssen vaccine. Boosters will not be included in what is considered a full course of vaccination.
Those who have been vaccinated abroad must provide evidence of vaccination status and, where necessary, have a top-up dose with a UK-authorised vaccine, consistent with the UKHSA’s guidance.
Vaccination status will be evidenced through the NHS COVID App, NHS Webpage or NHS Letter; EU Digital COVID Certificate; Centers for Disease Control and Prevention vaccination card; or a certificate in English, French or Spanish issued by the competent health authority. Pregnant employees can use their MATB1 form as evidence.
How does this impact new starters?
All new starters must be Covid-vaccinated, unless an exemption applies. However, there will be a temporary exemption period to allow those joining the business to start their role without being fully vaccinated. This applies as follows.
Those who join in the Government’s 12-week grace period from when the new laws are approved must have had at least one dose of the vaccine by their start date and have their second dose no later than 10 weeks from the first dose.
Those who join for the first time on or after the date the regulations come into force must have had one dose at least 21 days before their first day of deployment and their second dose no later than 10 weeks from the date of the first dose.
The same principle will apply to individuals who changed roles internally and their new job requires vaccination, but their original role didn’t. Employers must make sure they are aware of the date (10 weeks after the first dose) of full vaccination and follow up with relevant individuals to confirm evidence of this.
A deadline of 1 April 2022 gives organisations time to prepare and put measures in place to obtain evidence from affected staff. Some healthcare providers may have already undertaken a similar exercise in relation to their care home workers, or where they have implemented a contractual no jab-no job policy.
It is important that a full and fair process is followed before any consideration is given to redeployment or dismissal. It is likely an SOSR (Some Other Substantial Reason) approach will be the most appropriate in this situation. Although dismissal may be inevitable for some, organisations should keep in mind that an unfair dismissal claim can still be made based on a faulty procedure, even when the reason for dismissal is a good one.
Following the publication of this article, the regulations referred to in this article became law on 6 January 2022. This means that the 12-week grace period for all affected staff to become vaccinated runs from 6 January 2022 to 31 March 2022. From 1 April, only those who are fully vaccinated, exempt, or a new starter falling within their own 10-week grace period, may be deployed in frontline and ancillary roles in CQC-regulated health and social care activities.