Last reviewed 10 February 2022

People will have mixed feelings about the Government’s policy U-turn on vaccination as a condition of deployment (VCOD), days before the 3 February deadline for first Covid-19 doses. Health and care providers in England now need to be aware of new instruction, consultations, regulations, guidance and action that will be generated by the last-minute decision, made at a time when the NHS is already under increased pressure. Christine Grey explains.

On 31 January, Health Secretary Sajid Javid announced that VCOD will be ended in health and all social care settings. He said: “While vaccination remains our very best line of defence against Covid-19, I believe it is no longer proportionate to require VCOD through statute.”

He said the Government had to consider “the impact on the workforce in NHS and social care settings”, together with higher population immunity than at the time the policy was introduced, and the fact that the now dominant Omicron variant is less severe than the previous Delta strain. Since September 2022 there has also been a net increase of over 127,000 people working in the NHS who have been vaccinated.

A great deal of preparation and many difficult conversations with staff have already been carried out. NHS Confederation and NHS Providers said leaders were "frustrated" at the “11th-hour change” as, although their efforts may well have helped to raise vaccination compliance, their teams had “raced” to meet the deadline.

Shadow Health Secretary Wes Streeting welcomed the announcement but called on the Government to continue efforts to improve on vaccine hesitancy. The Royal College of Nursing (RCN) highlighted how the climbdown came too late for those staff working in care homes who have already lost their jobs.

Concerns about a change in policy

In a joint statement, NHS Confederation and NHS Providers Chief Executives Matthew Taylor and Chris Hopson said they recognised the reasons the Government gave for dropping mandatory VCOD but added that “there would be concern at what this means for wider messaging about the importance of vaccination for the population as a whole.”

Former Health and Social Care Secretary Jeremy Hunt questioned implications for the messaging for frontline NHS staff, and suggested the real reason for the decision was a staffing crisis which the Government had still not brought forward plans to address. He said although the Government had “won a very important patient safety argument” the U-turn raised new questions: “What will happen the next time the Secretary of State wants to introduce an important vaccine, for example for flu, and make it mandatory?”

Summary of immediate action

Staff working in CQC-regulated services are no longer required by statute to be fully vaccinated against Covid-19 by 1 April 2022.

This policy change is subject to a Parliamentary process that requires consultation and a vote to pass it into legislation.

Further guidance will be available once the latest regulations are confirmed.

Primary care network (PCN) clinical directors and GP providers have been told not to serve notice of termination on unvaccinated employees affected by the regulations.

Any member of staff already served notice should be contacted to revoke this as set out in a letter from NHS England and Improvement.

Those working in health and social care still have a professional duty to get vaccinated and Get Boosted Now.

NHS England expected providers to provide a report on unvaccinated staff. A live situation report (SITREP) due for submission on 2 February, still had to be completed with the exception of details in relation to service impact.

The Government will strengthen guidance and consult on updates to the Department of Health and Social Care’s (DHSC’s) Code of Practice for regulated providers to strengthen requirements in relation to Covid-19.

Regulations to be revoked

The legal requirements to be revoked are set out in the Health and Social Care Act (2008) (Regulated Activities) (Amendment) (Coronavirus) (No.2) Regulations 2022, which were made on 6 January 2022. They extend VCOD to people providing direct, face-to-face, CQC-regulated activities to non-residential social care settings as well as to NHS staff. They didn't cover Covid-19 booster vaccines. Making flu vaccines compulsory was dropped after the consultation.

The deadline of 1 April 2022 provided a grace period from 6 January to 3 February for registered persons to obtain the evidence that staff within scope met the vaccination requirements, were medically exempt or covered by other exceptions.

Following the decision to introduce a statutory instrument to repeal these regulations, all relevant advice is pending the passage of this law, which will follow a two-week consultation. This, with Labour support, appears to be a simple formality. Sajid Javid said the Government will not enforce the regulations during this period.

The VCOD regulations for care homes in England will also be repealed, as care home staff were legally required to be vaccinated from last November. Those who had to leave are now free to reapply. According to the Government’s own estimates, 40,000 care home staff left their jobs.

Requirements for registered persons to record evidence of staff vaccination or exemption, or how it was checked, in line with General Data Protection Regulations (GDPR), are to be reviewed as VCOD will not be mandatory and may no longer provide the justification of legal obligation as a basis for processing such information.

Code of Practice for IPC to be updated

Following a new public consultation, the Code of Practice on the Prevention and Control of Infections (IPC) will be updated and strengthened in light of the Covid-19 pandemic and latest policy. It was last updated in 2015, before Covid-19, to reflect CQC registration requirements that came into force in April 2015, the NHS structures introduced in 2013, and to give greater prominence to antimicrobial resistance.

Engagement

Staff engagement and reassurance continues to be crucial, especially as there may now be confusion after the latest U-turn. Managers have already been required to inform staff of the scope and implications of the regulations, check staff vaccination or exemption status, and carry out risk assessments where individuals cannot be vaccinated.

Offering clear information regarding the latest announcement will be important, as will be the use of any new processes to communicate effectively with staff. Government and sector leaders all endorse persuasion as the best way to increase vaccination uptake, and NHS guidance has emphasised the need to make all efforts to help staff to get vaccinated or to consider redesigning roles for those that need to keep away from direct, face-to-face contact.

Regular individual meetings can work to explore any remaining or new concerns. Engagement on an individual basis can also help employers keep information on the workforce current and be helpful in identifying Covid-19 related issues that may affect the health and safety of staff.