Last reviewed 1 February 2022
The deadline of 3 February 2022 is approaching for existing, unvaccinated staff in non-residential adult social care to have their first Covid-19 dose, in time to be able to receive their second dose by the 1 April 2022 deadline. Now that the Department for Health and Social Care (DHSC) has published its national operational guidance on vaccination as a condition of deployment (VCOD) in wider social care settings, providers can see what they need to do to comply whilst working to reduce any negative impacts on staff retention, recruitment and wellbeing.
Update: On 31 January 2022, Health and Social Care Minister Sajid Javid announced that the legal requirement for health and all social care staff to be double vaccinated is set to be revoked, subject to a two-week consultation and Parliamentary approval.
Deadlines for frontline NHS and adult social care workers in England to be fully vaccinated by 1 April 2022, with a first dose by 3 February, are no longer applicable. All care home staff had to be fully vaccinated by 11 November 2021.
Professional guidance will be strengthened and updates to the Department of Health and Social Care’s (DHSC) Code of Practice for regulated providers will be put out to consultation to strengthen requirements in relation to Covid-19, and will apply to all CQC-registered providers of all health and social care in England.
What are the requirements of the regulations?
The Health and Social Care Act (2008) (Regulated Activities) (Amendment) (Coronavirus) (No.2) Regulations 2022, made on 6 January 2022, extend VCOD to people providing direct, face-to-face, CQC-regulated activities to non-residential social care settings, such as domiciliary care, as well as the NHS.
At the moment, the regulations don’t require the registered person to ensure that people they employ or engage have provided evidence of having received a booster dose of Covid-19 vaccine, although this will be reviewed regularly, and managers are asked to encourage staff to take up the booster according to national public health advice.
Making flu vaccines compulsory was dropped after consultation on the regulations, but will be kept under review.
What are the key priorities for registered persons?
The grace period from 6 January to 3 February 2022 gives time for registered persons to obtain evidence that anyone they employ or otherwise engage to provide direct, face-to-face, CQC-regulated activity:
meets the vaccination requirements set out in the regulations
is medically exempt
is covered by certain other exceptions.
Within this period, the DHSC is urging registered persons to prioritise actions including:
inform anyone employed or engaged to provide CQC-regulated activity of the scope of the regulations
communicate timescales and what would happen if staff are unable to adhere to them
check vaccination or exemption status of staff in scope of the regulations
make sure systems and processes are in place to ensure that individuals in scope have provided evidence that they have satisfied the vaccination requirements or that they are exempt or covered by other exceptions
ensure any records kept remain in line with General Data Protection Regulations (GDPR)
ensure appropriate risk assessments are undertaken where individuals employed or engaged cannot be vaccinated
allow time for any formal process to be followed and for notice of termination to be given if necessary
comply with employment and equalities law and adhere to good employment practice.
Staff can demonstrate their vaccination status by using the “View Covid-19 Records” function on the NHS App or an NHS Domestic or Travel Covid Pass letter.
The registered person doesn’t need to keep a record of staff vaccination or exemption status, although a record of the evidence seen or how it was checked can be kept for internal record keeping, in line with GDPR.
The general consensus, even from the DHSC, is that good communication and persuasion are always the best ways to encourage staff to get vaccinated. Recent guidance for NHS employers emphasised making all efforts to persuade staff to have the vaccine, redesign roles or look at redeployment options away from direct face-to-face roles.
Individual conversations can work to increase vaccination uptake, thereby avoiding dismissal, and should be clear about the potential consequences of not meeting the requirements on time. Staff should be informed about issues such as temporary exemptions and how to evidence vaccination or medical exemption. Any concerns should be explored.
Registered persons are being asked to engage with their workforce as soon as possible to make sure staff are able and have time to comply with the regulations. Information gathering and engagement on an individual basis will help employers to compile their records of staff who have provided the required evidence.
Effective engagement will also help to work out whether there is a need to replace staff or make other operational arrangements if unable to deploy existing staff. Registered persons also need to communicate with and plan for staff who are under the age of 18 on 1 April 2022 but will turn 18 later.
Engagement can be a helpful way to identify and address potential contraventions of the Equality Act 2010, just as communications with a recognised trade union or employee representative could help in developing agreed approaches to potential redeployment or dismissals, or identify measures that may affect the health and safety of staff.
Support for effective communications
The operational guidance lists a range of resources to support good communications with staff to encourage vaccine uptake, and help conversations about Covid-19 vaccine safety, efficacy and financial support to access vaccination.
It refers providers to Public Health England’s Vaccine Communications Toolkit for adult social care, and a dedicated platform from Skills for Care with resources to help social care employers retain and recruit staff.
Annex A of the operational guidance provides more detail on how to engage with the workforce about the regulations, fair dismissal, redeployment and notice pay. It also gives guidance on writing a vaccination policy and provides links to ACAS’s good employment practice support when implementing VCOD.
Local authorities also have a responsibility to help registered providers build staff confidence in the Covid-19 vaccine and have open conversations with hesitant staff, as well as to help ensure access to rapid vaccination, and have funding available via the Infection Control Fund (ICF). They should also be working with registered persons to support them in reviewing and strengthening their business continuity plans.
The Health and Social Care Act 2008: Code of Practice on the Prevention and Control of Infections and Related Guidance is in the process of being updated and should be followed when implementing the regulations.
Employers are being asked to be honest and non-judgemental with staff about the consequences of continuing to refuse the vaccine, and must follow a “fair” procedure and act reasonably.
The guidance says the regulations themselves may provide a “fair” reason to dismiss an employee over 18 who is not vaccinated or medically exempt if they can’t reasonably be redeployed to other duties.
Before dismissing an employee, registered persons should consult the employee, give them an opportunity to explain their circumstances and any reasons why they should not be dismissed, and take and share notes of any formal meetings. Some other considerations include:
alternatives to dismissal
acting consistently where cases are alike
providing a right of appeal against dismissal.
It is clear that under the regulations this would not be a redundancy exercise. General principles that apply in redundancy are not applicable, so dismissed employees won’t be entitled to a redundancy payment.
Care Quality Commission
The requirements on the registered person form part of the CQC’s fundamental standards and will be monitored and enforced in appropriate cases.
The regulator will seek assurance that those registering for the first time, or amending their registration, have a robust governance process to monitor and ensure that requirements are in place.
COVID-19 Vaccination of People Working or Deployed in Care Homes: Operational Guidance, available on the GOV.UK website
Vaccine Communications Toolkit for Adult Social Care, Coronavirus Resource Centre, available on the PHE website
Health and Social Care Act 2008: Code of Practice on the Prevention and Control of Infections, available on the GOV.UK website
Guide to the UK General Data Protection Regulation (UK GDPR), available on the ICO website.