Last reviewed 10 December 2021
Since the announcement that the Government was to make Covid vaccination a legal requirement for workers in health and wider social care settings, employers are concerned about how it affects them and their staff. Laura Davie, Content Consultant at Croner-i, explores the typical Q&As regarding mandatory Covid vaccines in health and wider social care settings.
In July 2021, the Government introduced a new legal requirement that anyone who is deployed to work in a CQC-regulated care home in England which provides nursing or personal care, must be fully vaccinated against Covid, unless an exemption applied.
The requirement is set out in the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 and came into force on 11 November 2021. Affected workers who did not provide evidence of vaccination or exemption by this date must have been redeployed to a role outside the care home or dismissed. Those who provided self-certification evidence for a temporary exemption previously had until 24 December 2021 to provide evidence of permanent medical exemption, or vaccination.
However, on 8 December 2021 the Government released a further update extending the self-certification deadline to 31 March 2022. As such, self-exemption forms will now continue to be valid until 31 March 2022, so long as they have been received before 24 December 2021. From 1 April 2022, workers will either need to show proof of a formal exemption or full vaccination to comply with the regulation and continue working in a CQC-regulated care home.
Following the introduction of mandatory vaccination requirements within care homes, the Government launched a separate public consultation into making the Covid and flu vaccine a condition of deployment in health and wider social care settings in England.
The consultation closed on 22 October 2021 and the Government published its response on 9 November 2021. In this, it confirms its intentions to mandate Covid vaccination to wider settings.
As of October 2021, around 126,000 people within affected sectors remain unvaccinated. This makes up 5.4% of total workers. The hope is that by introducing new regulations there will be an increase in vaccination levels in health and care workers, to protect all those in the health and care service, a large number of whom are vulnerable, as well as the wider community. It is also hoped to reduce Covid-related sickness absences for these workers and the knock-on impact this has on organisations.
What was the outcome of the consultation?
The Government confirmed two main outcomes of its public consultation into making vaccination a condition of deployment in the health and wider social care sector in England:
The flu vaccination will not be a legal requirement. However, this will be kept under review and could be introduced at a later date if needed.
Covid vaccination will be a legal requirement for frontline clinical and non-clinical workers, who have direct, face-to-face contact with service users.
Who will be required to have the vaccine?
Vaccination will be a condition of deployment to all frontline workers who provide face-to-face care for patients and clients. This was defined as:
those deployed to undertake direct treatment or personal care as part of a Care Quality Commission (CQC) regulated activity
non-clinical workers not directly involved in patient care but who may still have direct, face-to-face contact with patients, such as receptionists, ward clerks, porters or cleaners.
The requirements will apply to CQC-regulated activities in both the public sector (NHS) and independent sector in England.
Agency workers, volunteers, trainees and contractors are all included within the scope of the requirements.
When will the regulations come into force?
The regulations are expected to come into force on 1 April 2022, subject to parliamentary approval.
Affected workers will be given a 12-week grace period to provide evidence of vaccination or exemption. This grace period will begin from the date the Government approves new legislation (likely in January 2022).
What settings does this impact?
The regulations aim to protect vulnerable people and individual workers in health and social care settings, including hospitals, GP practices, and where care is delivered in a person’s home.
Examples of CQC-regulated activities which may be affected include personal care; treatment of disease, disorder or injury; diagnostic and screening procedures; termination of pregnancies; management of supply of blood; mental health assessments and transport services.
The Government outlined that some ancillary staff will be mandated to get the vaccine (eg receptionists, porters, etc) but we await further guidance to understand its full extent and to clearly establish the exact settings and roles which are affected.
Are there any settings which are not included?
Yes, 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 some CQC-regulated activities carried on in residential or inpatient settings. For example, residential recovery services for drugs and alcohol, hospices and registered extra care and supported living services.
Will there be any exemptions?
Some individuals will be exempt from the regulations:
those who are under the age of 18
those who are clinically exempt from Covid vaccination (more details below)
those who are taking part, or have previously taken part, in a clinical trial for a Covid vaccine
those who do not have direct, face-to-face contact with a service user, for example, those providing care remotely, such as through triage or telephone consultations or managerial staff working in sites away from patient areas.
There will be no exemption for those who refuse vaccination due to religious beliefs.
What is covered under medical exemption?
Based on the processes previously implemented for care home workers, some individuals are unable to be vaccinated for medical reasons. In these situations, staff are able to apply for a permanent medical exemption. This includes:
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 (eg myocarditis).
Short-term exemptions will be available for those with short-term medical conditions (for example, people receiving treatment or medication which may interact with the vaccine, or those who contracted Covid so had to wait 28 days before getting the vaccine) and as an option that some pregnant women may choose to take.
For pregnant women, the exemption expires 16 weeks post-partum. This will allow them to become fully vaccinated after birth.
How do individuals apply for medical exemption?
To apply for a permanent medical exemption, staff 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.
Pregnant women who choose to use the medical exemption can use their MATB1 form as evidence of their exemption. They do not need to phone the NHS Covid Pass Service.
How do employees evidence their medical exemption or vaccination status?
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 women can use their MATB1 form as evidence.
Those who are given a permanent medical exemption, can use the NHS Covid Pass, either digitally or with an NHS letter to show evidence of this.
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 continue in their role 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.
Do all new starters have to have the vaccine?
Yes, 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.
What about workers who have been 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.
What happens if workers don’t have the vaccine by the deadline?
Unless the employee is exempt, anyone working in an affected setting will be under a legal requirement to be fully vaccinated. Continuing to deploy an existing employee who contravenes the requirement is likely to be unlawful.
Employers will need to redeploy an employee to an alternative role which does not have direct, face-to-face patient contact, who would otherwise be working in breach of the vaccine requirement. If redeployment is not possible, the employee will need to be dismissed.
What happens if an employee has only received one dose of the vaccine by April 2022?
There is a 10-week temporary exemption period for new starters to the organisation who have had one dose of the vaccine, to get their second (see above).
Your request for existing employees to provide evidence of their current vaccine status should help to highlight those who intend to get the vaccine, who have had the first dose but are not in a position to have the second until after April 2022.
In these circumstances, you should consider how the interim period can be managed. For example, you could agree with the employee to temporarily redeploy them to an alternative non-contact facing position; you could approve a period of annual leave; you could enforce annual leave, provided the correct period of notice is given; or, you could agree a period of unpaid leave.
What might redeployment options be?
It is clear that redeployment — transferring the employee into another role — will need to be to a role which does not have direct, face-to-face patient contact.
Employers should not delay in exploring whether there are any roles that employees can be moved into and discuss this with employees at an early stage.
When considering redeployment, relevant factors to take into account include the employee’s skills, experience, qualifications and whether they could perform the role with some training.
It is for the employee to decide whether or not they wish to accept the alternative role. It is advisable to communicate the details of the alternative role in writing, specifying sufficient detail of the position to allow the employee to make an informed decision.
There is no requirement that the alternative employment must be the same status or pay as the employee’s previous role, (subject to any contractual provisions to the contrary in the employee’s current contract or the employer’s policies and procedures). The requirement is on the employer to consider alternative roles and avoid making any assumptions as to whether the employee would find such roles acceptable. A failure to fully consider and explore alternative employment is likely to make any subsequent dismissal for not providing evidence that the employee is fully vaccinated or medically exempt unfair.
If there is more than one employee who may be suitable for an alternative role, the role should be discussed with all employees who may be suitable and any employees who are interested in the role should be invited to apply for it or submit expressions of interest. If the employer receives more applications or expressions of interest than vacancies, a fair selection process will need to be implemented.
What process should be used to dismiss unvaccinated staff who are not exempt?
Rules on fair dismissal will still apply in these circumstances. This means that an employment tribunal can still find that a non-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.
The first step is to inform your employees about the legal requirement and that they have been identified as falling within its scope. It is important, even at this early stage, that employees are made aware that their failure to provide necessary evidence will result in their redeployment or their dismissal.
You should ask for evidence that the employee:
is fully vaccinated
has received the first dose and has the second dose booked
has the first dose and/or second booked
is eligible for an exemption.
You can set your own deadline for when employees need to provide evidence by, so that you can keep an element of control over the situation, however, employees effectively have until April 2022 to provide that evidence.
If an employee does not provide evidence by your deadline, you should invite them to a formal meeting to find out why and discuss the result of continued failure to provide evidence, ie redeployment options or dismissal. Your subsequent actions will depend on the employee’s response, but a further meeting will also be needed to confirm redeployment or dismissal after the employee has been given a further opportunity to provide evidence.
In some circumstances, it may be appropriate to confirm dismissal in advance of the introduction of the law with a notice period set to expire on the date of enforcement. Where this happens, there will be a need to continually monitor the situation and withdraw the notice of dismissal in the event that satisfactory evidence is provided.
Notice pay is normally payable when dismissing an employee in these circumstances even where employment expires after the date of enforcement, meaning the employee is unable to work for a period.
I am worried that I will have a staff shortage because of this requirement. What can I do?
The Government recently announced its £162.5 million workforce recruitment and retention fund to support the health and social care sector.
The Spending Review also committed funding to keep building a bigger, better trained NHS workforce, including support for some of the biggest undergraduate intakes of medical students and nurses ever and reaffirming the Government’s commitment for 50,000 more nurses.
What is the Government doing to address vaccine hesitancy?
in recent months the NHS has focused on a targeted approach to improve uptake in hesitant groups by undertaking campaigns directed towards midwifery workers, black, Asian, and minority ethnic (BAME) groups and students, as well as using the booster campaign as an opportunity to re-engage workers. In order to maximise uptake over the winter months, the NHS’s plan includes the following:
to further increase engagement with targeted communities where uptake is the lowest, including extensive work with BAME and faith networks to encourage workers to receive the vaccine
use Chief Professional Officers to encourage staff vaccination uptake for all NHS staff in a communications push
the use of 1-2-1 conversations for all unvaccinated NHS staff with their line manager, with clear guidance on how to do this. This was associated with an increase in vaccine uptake by 10% in phase 1
increasing number and diversity of opportunities to receive the vaccine. Using the booster campaign to make the most of walk-ins, pop-ups, and other ways to make getting the vaccine as easy as possible.
This will be in place in addition to existing targeted programmes of work to support vaccine uptake, including bespoke communication materials; paid advertising; stakeholder toolkits; positive messaging using influencers and leaders; content in different languages; briefings with different faith groups; engagement sessions; webinars with clinical experts; vaccine champions; and practical support including vaccination at places of work, flexible access to vaccine hubs, digital booking support and monitoring and support from NHS England.
What should affected employers be doing now?
Employers may have already begun to collect evidence that their employees have had one or both doses of the vaccine, or a medical exemption. They should make sure that this evidence is of sufficient quality; specifically, that it is shown through the NHS Covid Pass. Vaccine or appointment cards will not be acceptable.
Make sure employees are informed about the Government’s confirmed plans to require them to have the vaccine and the potential outcomes if they do not have it by the deadline and are not medically exempt.
Re-enforce any exercise they have undertaken to raise awareness of the benefits of the vaccine.
Remind employees of their current policy on permitting time off work for vaccine appointments and if they do not already, consider offering paid time off for the appointment if they are experiencing some hesitancy.
Consider any potential avenues for redeployment for employees who choose not to have had the vaccine by the Government’s deadline.
Consider how they will continue to mitigate both exposure to and transmission of Covid for employees who are exempt.
Prepare for undertaking dismissal procedures of those employees who would otherwise be breaching the requirement to have the vaccine.
Review their recruitment procedures to ensure that new starters have had the vaccine, or are exempt, once the requirement comes into place.