FAQs: Mandatory vaccination for health and social care workers as at 27 January, 2022

***Please note this article was up to date as at 27 January 2022. For the latest guidance on this topic, please refer to our most recent update.***

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These FAQs should be read in conjunction with our series of FAQs regarding the new legal requirement for mandatory vaccination for health and social care workers which will come into force on 1 April 2022. 

These FAQs are based on information available as at 27 January 2022.

The information set out below does not constitute tailored legal advice. For specific queries and/or issues, we recommend that legal advice is obtained on a case-by-case basis.

Reminder of Key Dates:

• 3 February 2022 - First dose of vaccine required by this date
• 1 April 2022 - Regulations come into force

All staff in scope must be fully vaccinated or have a valid medical exemption.

Key links:

• NHS England Phase 1 Guidance
• NHS England Phase 2 Guidance
• NHS England Phase 2 FAQs
• DHSC Guidance in Wider Adult and Social Care settings

FAQs:

1. Is there any further advice on which roles will be in scope of the Regulations?

The legislation sets out a potentially broad scope, with a two stage test of whether:

1. The registered person (i.e. the provider of the CQC registered services) employs or engages an individual for the purposes of the provision of a CQC regulated activity:
   • The definition of regulated activity includes any activity which is “ancillary to” it, which is likely to capture most activities that support the delivery of regulated activities.
   • The words “employ or engage” are wide enough to capture all workers and volunteers, including those engaged by third parties or contractors.
2. The individual has direct, face to face contact with service users. There is no minimum level of contact that is stated in the legislation.

Our understanding of the scope, as set out in the legislation, is set out in our Flow Chart.

Subsequent written guidance and verbal briefings by regulators have indicated that they may apply a narrower scope, in practice, to enforcement (in respect of both of the above tests).  While this leaves the position for organisations significantly less clear, it is likely to be important for organisations to demonstrate that they have applied a reasonable system to determine which individuals are within scope and which are not and that they have done so consistently.

If you require any specific advice on this, please get in touch.

2. How can we obtain proof of vaccination from staff?

The NHSEI guidance notes that:

• Staff can be asked directly about their vaccination status (proof of this should be obtained via either the NHS Covid Pass, the NHS App Online or an NHS Covid Pass letter);
• Organisations that have undertaken their own vaccination delivery programme can access available information as to which of their staff have received vaccinations; and
• Central databases that record vaccination data from the national vaccination programme can be used and integrated with staff records (although these may be less accessible for independent sector providers).

The Control of Patient Information (COPI) notice provides a legal basis for NHS organisations to use what would otherwise be confidential patient information (the vaccination status of staff) so long as a record is kept of doing so. In circumstances where independent sector providers seek vaccination status information from NHS organisations, we recommend that specific legal advice is obtained on this issue.

3. How should staff provide proof of exemption?

Individuals in scope of the regulations, who believe they are medically exempt from the requirement to be vaccinated should apply for a formal COVID-19 medical exemption to comply with the regulations. This can be done by ringing 119 (they should not ask their GP for an application form. If they do go to their GP before they get their application form, they will be asked to call the NHS COVID Pass service on 119), and requesting an NHS COVID Pass medical exemption application form.

Pregnant women can alternatively use a MAT B1 certificate as an alternative to applying for a medical exemption.

If an individual indicates that they are in the process of applying for a medical exemption, you should follow up with this.  Depending on whether the member of staff wishes to share the details of their medical exemption, the reasons may indicate a need to refer the individual to Occupational Health for relevant advice, and/or to complete a risk assessment and consider any additional support which may be required.

4. What should we record in relation to proof of vaccination or exemption?

The data protection principle of minimising the information retained should be applied, so providers will need to decide what evidence is “necessary” to be able to demonstrate compliance. 

The Regulations require that the worker has “provided evidence satisfying the provider” and does not stipulate what will “satisfy” the provider or how to record it.  The guidance for the healthcare, home care and care home sectors are all contrary to one another in respect of the evidence to be gathered.   To comply with the legislation, providers need to record that they have checked that they have seen evidence which confirms that the worker is ‘fully vaccinated or exempt’.  They do not necessarily need to record further details or copies of the specific evidence which has been seen.

In some cases, providers may justifiably need to record more information, for example, when the exemption is temporary, or for separate purposes such as to carry out risk assessments for medically exempt staff. It may be necessary to record when any temporary exemption expires and by when the worker would need to be fully vaccinated.

5. How should individuals’ data be dealt with?

Firstly, organisations should complete a data protection impact assessment describing how they plan to use staff vaccination status information, including privacy risks that might arise from this.

An ‘appropriate policy document’ or Privacy Notice should be in place describing how the processing of staff information complies with data protection law.

It is important to limit who has access to information about staff vaccination status, to only those that ‘need to know’ as part of their role, and ensure that those that have access to this information are aware of its confidential and sensitive nature and handle it appropriately.

CQC expectations are that any evidence of vaccination status collected and recorded (personal data), must be handled in accordance with UK GDPR.

If you require any further advice on this, please contact our Information Law team by email to James.Cassidy@bevanbrittan.com.

6. How should we be communicating with staff prior to 4 February and 1 April?

Healthcare organisations should have been engaging with staff by way of meetings and/or written correspondence regarding the Regulations and the implications if staff remain unvaccinated on 1 April 2022. NHSEI guidance recommends:

• Speaking to staff about possible consequences, dates by which steps will be taken, and the steps that will be taken, including notifying that they might be dismissed with their last day being 31 March (or after depending on notice periods);
• Giving staff the opportunity to be accompanied during the informal meetings and
• Exploring alternative options, including adjustments to roles, restriction to duties or redeployment and seek the employee’s suggestions.

We have developed a model “script” to assist managers with both informal and formal meetings with staff to support a fair, transparent and compassionate process. Please get in touch if you feel this would be helpful for your organisation.

Healthcare organisations should also have been engaging with their third party contractors to communicate the steps that they should be taking and the evidence that they should be obtaining from their staff and providing to the registered person.

7. How should healthcare organisations deal with third party contractors?

The Regulations apply equally where a regulated activity is delivered through substantive, seconded or fixed-term staff, bank and agency workers, contractors, volunteers, locums, honorary contract-holders, students or trainees, or any other type of worker involved in the provision of a CQC regulated activity (including any activity which is ancillary to the regulated activity) and who has direct, face to face contact with patients or service-users.

Organisations will need to take action with providers/sub-contractors/agencies regarding third-party workers, to clarify whether any staff are in scope.  They may wish to amend or vary their contracts to this effect. The registered person will need to ensure that clear governance and systems are in place to confirm in scope roles and that the registered person is provided with evidence that no third-party workers are provided in breach of the regulations.  The compliance burden rests on the registered person rather than the third party employer so, unless CQC confirms otherwise, it is going to be important for the registered person to be able to show that it has seen evidence of compliance for third parties’ staff as well as its own.

Please get in contact with us for any assistance with providing model letters, which can be sent to third party contractors.

8. If staff remain unvaccinated following an initial informal meeting, what are the next steps?

Staff who remain unvaccinated should be invited to a formal meeting (in person or virtual), which takes place from 4 February 2022.  This should be chaired by an appropriate manager who has the authority to dismiss if necessary.  Staff should be warned that a potential outcome of the meeting may be dismissal.

Redundancy should not be recorded as the reason for any dismissal in these circumstances.  The guidance sets out that is important to note that this is not a redundancy exercise.  There is no diminishment or cessation of work of a particular kind.

Staff should be afforded a right of appeal from any decision to dismiss as part of a fair and transparent process.

NHSEI guidance notes that employers can issue staff with contractual notice of dismissal whilst they explore redeployment options, and thus notice periods and the search for alternative roles can run concurrently.

Please get in touch with us for advice regarding the formal process. We can assist with providing “model documents” including speaking points for formal/appeal meetings and invitation letters.

9. How should healthcare organisations deal with redeployment?

Organisations should freeze recruitment to any out of scope roles and proactively identify potential redeployment opportunities. There should be no unreasonable delays in commencing redeployment processes as an alternative to dismissal, for unvaccinated staff.

Redeployed staff should not be pay protected, unless (at the organisation’s discretion) unvaccinated for good reason or because pregnant.

A record of the reasons for the decisions made following a recruitment process should be kept, detailing clear justification as to why the individual has been successful/unsuccessful at obtaining the role.

Redeployments should start from 1 April or brought forward if mutually agreed.

Support should be considered such as interview skills workshops, signposting staff to psychological health and wellbeing services, reasonable paid time off for interviews.

10. If an individual tests positive for Covid-19, before they can have their first vaccination prior to the 3 February 2022 deadline, how should this be dealt with?

Any individuals who test positive will be considered temporarily exempt from the date of their positive test result on the basis that there are clinical reasons why they should not be vaccinated. Their temporary exemption will start from the date of their positive test and will last for 42 days from the date of their positive test result.

The 42 days comprises a 28-day grace period based on clinical advice, and 14 days in which to receive their first dose of COVID-19 vaccine.

You should ask the individual to provide evidence of their positive test and date. This could include a text message after using a rapid lateral flow test kit, or the NHS App for proof of prior infection. You should also remind the individual to book their vaccine appointment after the 28-day period.

After 42 days, you should no longer consider them as being temporarily exempt.

11. If staff remain unvaccinated, can we start the dismissal process prior to 4 February 2022?

3 February is the last day on which staff can take up the first dose of the vaccination in order to be fully vaccinated by 1 April (due to the current 8 week interval required between doses).  We advise strongly against implementing any dismissal decisions prior to 4 February as to do so would present significant litigation risk.

The Phase 2 guidance confirms that formal processes leading to the termination of employment, including issuing notice of dismissal, should not commence before 4 February 2022 and notice should not expire before 31 March 2022.

12. Does collective consultation apply to any dismissals arising from staff being unvaccinated?

NHSEI and the Department for Health and Social Care have considered the issue and do not believe that any dismissals arising because a worker is unvaccinated should engage section 188 requiring collective consultation.

It should be noted that the guidance states that “this is ultimately a decision for each organisation to take independently and based on its individual circumstances”.

13. On what grounds can staff appeal?

There is an argument that as the ACAS Code of Practice does not strictly apply to dismissals for breach of a statutory restriction or “Some Other Substantial Reason”, employers might consider limiting the grounds on which staff can appeal.  However, we would still recommend that employers allow staff to appeal their dismissal, irrespective of the grounds they raise, because it is a standard expectation of a fair dismissal that staff will have this opportunity and employment tribunals are still likely to expect basic principles of the ACAS Code to have been applied. 

Employers may wish to recommend that staff focus appeals on certain grounds only (e.g. staff disputing that they are in scope, explaining that they have since been vaccinated, or that they should have been exempt, or disputing a redeployment decision).  However, if other grounds are raised, we would still recommend hearing the appeal, even if some grounds can be dismissed after relatively brief consideration (such as criticism of the legislation itself).

14. How will CQC monitor compliance of the Regulations?

It is understood that CQC will take a “proportionate” approach to enforcement, depending on safety and individual circumstances. CQC has published a statement on their website outlining their approach to VCOD.

CQC will build a new question into their Provider Information Return (PIR) – “how are you assured that those you employ and deploy within your service are vaccinated in line with government requirements?”

CQC will want to see records of why providers have decided roles are out of scope. For further information and specialist advice on the regulatory issues, please contact Carlton.Sadler@bevanbrittan.com.

 

If you would like to discuss this topic in more detail, please contact Alastair Currie, Partner, or Jodie Sinclair, Senior Partner.