10/11/2021

These FAQs have been prepared to assist employers in the wider health and social care sector to understand some of the key aspects relating to the introduction of the mandatory vaccination and to support organisations in their preparedness for the 1 April 2022 commencement date. These FAQs do not apply to CQC-registered care homes, who should refer to our earlier published material on this topic.

These FAQs are based on the applicable legislation and Government guidance as at 10 November 2021 including the Department of Health and Social Care press release and the formal government response to the consultation.

The information set out below does not constitute tailored legal advice and we recommend that legal advice is obtained on a case-by-case basis.

Who is in scope?

Health and social care workers, across the wider CQC-regulated health and social care sector, who have face to face contact with service users, while providing care (unless they are exempt).

The CQC-regulated health and social care sector includes services that are publicly (e.g. NHS) or privately funded as well as voluntary and third sector services. The scope extends to but is not limited to hospitals, Clinics, GP practices and also in a person’s home.

Roles within scope will include:

  • Doctors
  • Nurses
  • Dentists
  • Domiciliary care workers
  • Volunteers
  • Ancillary and support staff (such as porters, cleaners or receptionists)

Ancillary and support staff will fall within scope as they may have social contact with patients even if not directly involved in their care.

The consultation response notes that the intention is for the requirement to apply equally where a regulated activity is delivered through agency workers, volunteers or trainees, or contracted to another provider.

Shared Lives carers are however not in scope of the proposed regulations (where the care recipient lives in the home of the carer).

Who is exempt?

  • Registered persons for whom vaccination is not “clinically appropriate”. The consultation response refers to further detail being released in due course, but that it will reflect the Green Book on Immunisation.
  • Those who are taking part/have previously taken part in a clinical trial for a Covid-19 vaccine
  • Under 18s (the consultation notes that “this decision will be kept under review”).

Those who refuse the vaccine due to religious beliefs will not come within an exemption.

Further detail is expected regarding exemptions for pregnant women. The response notes that there are already arrangements in place for demonstrating Covid-19 vaccination status with short-term exemptions available for those with short-term medical conditions - this may be an option that some pregnant women may choose to take.

The consultation response refers to the current short-term exemptions and notes that the government will set out the arrangements for healthcare workers in the guidance on exemptions, which will support implementation of the policy. We will keep this under review and update when any further guidance is provided regarding exemptions.

When do the regulations come into effect?

The requirements will come into force in the spring, subject to the passage of the regulations through Parliament.

There will be a 12-week grace period between the regulations being made and coming into force to allow those who have not yet been vaccinated to have both doses.

Enforcement would begin from 1 April 2022, subject to parliamentary approval.

Which vaccines are mandatory?

Although the initial government consultation considered making both the Covid-19 and flu vaccination mandatory, it has been decided that the regulations will be limited to the Covid-19 vaccine only.

While the policy will not apply to Covid-19 boosters or the flu vaccine at this time, the government will keep this under review, and if necessary, bring forward amendments to the regulations.

Can we wait for the outcome of the Judicial Review challenge currently before the Courts?

Since the issue of the judicial review challenge on 9 September 2021, there has been no further update as to when this will be heard and as the outcome of the legal challenge is uncertain, employers should ensure that they continue to prepare for mandatory vaccination coming into force on 1 April 2022.

If any regulations are found to be unlawful based upon the judicial review challenge, any decisions to dismiss staff who are within scope of the regulations could be overturned. Legal advice should be obtained at this point.

Can I require my entire workforce to be vaccinated even if they are not face to face?

If your workforce does not come within the scope set out above, there will be no legal requirement for them to be vaccinated against Covid-19, therefore it is important to tread carefully to minimise the legal risks associated with requiring mandatory vaccination.

It may be that due to the nature of your workforce/the duties required, it is reasonable to justify a mandatory requirement for the entire workforce to be vaccinated, however no such requirement should be implemented unilaterally.  

It is imperative that appropriate communication, consultation and risk assessments are carried out to minimise potentially significant litigation risk for employers.

Any decision to dismiss staff for refusing to be vaccinated, opens up challenges of whether refusal to be vaccinated can be classed as a fair reason to dismiss employees (where they have at least two years’ continuous service). In addition, implementing a mandatory vaccination policy, where there is no legal requirement could result in discrimination claims being brought.

We would strongly recommend seeking legal advice before implementing any policy which mandates vaccination, where it is not within the scope of the regulations.  

The extended regulations

The changes have been introduced as an additional part of the infection, prevention and control on all CQC registered providers under Regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. Failure to comply with Regulation 12, is an offence and could result in providers facing enforcement action by way of prosecution or penalty notices, as well as criticisms in inspection reports. It remains to be seen what CQC’s approach is to monitoring and enforcement of this obligation at a time when the sector is already facing severe staffing issues.

What can we do now?   

The experience of employers within social care who have been preparing for the introduction of the mandatory requirement coming into force on 11 November is that a proactive and focused approach should be taken as a matter of good practice rather than simply assuming that “it will happen” and that your entire workforce will be compliant by 1 April. Any such process should include a carefully planned out communication campaign focused on informing, engaging and persuading your workforce, meeting with staff to understand their individual positions, as well as careful resource planning to minimise impact on service delivery.

Employers should consider the following:

  • Assessing current Covid-19 vaccination uptake amongst their workforce;
  • Continuing to inform, engage and consult with staff to encourage voluntary vaccination whilst being mindful to mitigate risks of harassment allegations;
  • Updating policies and other key documentation such as Job Advertisements, Person Specifications and other recruitment documents and contracts of employment for new starters as a condition of employment;
  • Creating a fair and transparent process for meeting with staff regarding their vaccination status
  • Identifying potential re-deployment alternatives
  • Ensuring a clear and identifiable audit trail in the ongoing management of the vaccination preparedness
  • Reviewing template letters for relevant meetings and outcomes up to and including dismissal
  • Considering the data protection / GDPR considerations of processing special category health data of staff.

How can we support you?

We have supported a number of care home employers to ensure their organisation is ready for the implementation of the mandatory vaccination on 11 November 2021. We are well placed to assist the wider health and social care sector with:

  • Briefing sessions for HR and management teams, and Boards, on the practical implications of the pending regulations;
  • Support on reviewing and drafting contracts, policies and procedures; and
  • Assistance with navigating the options and providing practical and commercially sound advice on managing litigation risk.

 

If you would like to discuss this topic in more detail, please contact Jodie Sinclair.

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