09/12/2021

These FAQs should be read in conjunction with our FAQs published on 10 November 2021 regarding the new legal requirement for mandatory vaccination which will come into force on 1 April 2022. 

These FAQs are based on information available as at 8 December.

NHS England and Improvement (NHSEI) has recently developed and published guidance on Vaccination as a Condition of Deployment (VCOD) for Healthcare Workers.

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.

  1. Is there a minimum level of “direct face to face patient contact with service users” in order to fall within the scope of the mandatory requirement?
  2. Can we include in our job adverts and person specification the requirement for mandatory vaccination to apply to all roles?
  3. Can we ask job applicants for their vaccination status now?
  4. Staff in scope who provide direct face to face contact with service users will include those who are employed or engaged by the organisation. What does this mean in practice?
  5. Can we ask our existing staff their vaccination status?
  6. How will staff prove their vaccination status?
  7. How can exempt staff prove their status?
  8. What is the process for checking vaccination status for those staff who may have been vaccinated abroad?
  9. Is there an exception for pregnant women?
  10. What happens if staff refuse to provide their vaccination status or confirm they do not intend to get vaccinated?
  11. How should we deal with new joiners?
  12. Are there any temporary medical exemptions which apply for this sector, as with social care?
  13. Might we need to consider dismissal of some staff? If so, when will that be and what for?
  14. Are staff booster jabs required too, as part of the fully vaccinated requirement?
  15. How should staff vaccination status be recorded?
  16. Should we have a vaccination policy?
  17. What should our next steps be?

 

Is there a minimum level of “direct face to face patient contact with service users” in order to fall within the scope of the mandatory requirement?

At this stage, there is very little detail on this issue, although the Government’s Consultation response and NHSEI’s guidance states that the requirement could apply to staff such as receptionists, ward clerks, porters and cleaners.  It may be safest to plan on the basis that the minimum level is very low indeed.  The NHSEI guidance states that, for example, “those providing care remotely, such as through triage

or telephone consultations or those in managerial roles working on sites separate from patient areas would not have direct face to face contact and so registered persons could continue to deploy them in those roles as usual. People on long term absence from work, such as maternity, shared parental leave or sickness absence, would not be in scope unless and until they return to having any face to face contact (which would include on one off visits such as Keeping in Touch (KIT) days).

For many organisations, there will be scenarios where members of the workforce have limited and/or ad hoc direct face to face contact with patients.

Organisations will need to assess the services which fall within the scope of the “regulated activity” and identify all possible cohorts of staff who are likely to be in scope, however limited or ad hoc that contact may be. 

The NHSEI guidance has provided clarification of whether individuals who may have direct face to face contact are “deployed by the registered person for the provision of a regulated activity”. This provides some useful examples of work that would and would not be in scope (See Appendix 2 of the guidance).

Can we include in our job adverts and person specification the requirement for mandatory vaccination to apply to all roles?

As noted in our previous FAQs, the roles which fall within the scope of the mandatory requirement will be those where individuals have direct face to face contact with patients, which may include non-clinical roles.

For new starters, it would be reasonable and appropriate to include this requirement in the job adverts and person specification so long as it is clear that:

  • It is informing candidates of the position, but not asking them to demonstrate their vaccination status or exemption before receiving an offer; and
  • Those exempt from vaccination will not be excluded.

If organisations wish to extend this requirement to all new starters, and not just those who will fall within the scope of the new Regulations, you can do so but we would recommend that you take legal advice to manage this wider application.

We can provide draft wording to assist with this.

Can we ask job applicants for their vaccination status now?

Employers cannot ask pre-employment health questions until an offer of employment has been made (section 60(1) Equality Act 2010). 

If the question is necessary for the purpose of establishing whether the applicant will be able to carry out a function that is intrinsic to the work concerned, there may be scope to rely upon the statutory exception but legal advice should be taken before this approach is taken. 

It is arguably unnecessary to ask questions about an applicant’s vaccination status until 1 April 2022. Even then, this is likely to depend on the status of the roles being offered.  We note that the NHSEI guidance takes the view that “When recruiting staff and workers whose roles are likely to involve Care Quality Commission (CQC) regulated activities and face to face contact with patients and/or service users, it will be lawful to ask candidates about their vaccination status”, which presumably means after 1 April 2022.

Staff in scope who provide direct face to face contact with service users will include those who are employed or engaged by the organisation. What does this mean in practice?

Employees, whether part time, full time, zero hours, term time or on other atypical working arrangements will fall within scope.

We understand that the regulations will also apply where a regulated activity is delivered through agency workers, volunteers, locums, students or trainees, or is contracted to another provider.

Can we ask our existing staff their vaccination status?

NHSEI guidance recommends using this time to ask workers to confirm their vaccination status / intentions in writing and set deadlines. All declarations confirming a full completed course of the COVID-19 vaccine will need to be evidenced.

However,  considerable care should be taken in relation to the data protection implications of this, ensuring that information about vaccination status is only processed to the minimum degree necessary and accessed by the minimum number of managers necessary.  Our information law specialists can provide further advice on this complex issue.

How will staff prove their vaccination status?

Workers will be able to prove their vaccination (or exemption) status, via:

  • The NHS Covid Pass; which can be accessed through the NHS App. Please note: where employers begin to check vaccination status through the App, there are data considerations to bear in mind if this data is going to be stored. Please get in touch for further guidance on this.
  • The NHS App online; The NHS Covid Pass can also be accessed via the NHS website. This displays the same information as is contained within the NHS app via an online web page.
  • The NHS Covid Pass letter; Individuals who do not wish to use the app/the NHS website, can request a letter, by contacting the NHS by phone or online, which is sent to them in the post, showing that they have been fully vaccinated.

How can exempt staff prove their status?

Using the options above.

The NHS Covid Pass will look the same for people who are medically exempt as it does for those who are fully vaccinated (i.e. it will not show the person has a medical exemption, although the individual will get a letter which does state that they are medically exempt).

What is the process for checking vaccination status for those staff who may have been vaccinated abroad?

Individuals who are vaccinated abroad will be required to provide evidence of their vaccination status and, where necessary, have a top-up dose with a UK authorised vaccine consistent with the UK Health Security Agency (UKHSA) guidance on vaccines. To avoid doubt, mixed doses (that is, where different vaccines have been administered to complete the dose schedule) will be accepted for the purposes of the vaccination requirements.

Is there an exception for pregnant women?

For pregnant women, the exemption expires 16 weeks after giving birth. This will allow them to become fully vaccinated after birth. A MATB1 certificate can be used to provide evidence of exemption status.

What happens if staff refuse to provide their vaccination status or confirm they do not intend to get vaccinated?

You will need to carefully plan your readiness and preparation steps for legal compliance by 1 April, 2022 and, indeed, by 3 February 2022 (which is the last date by which such staff will need to have had their first jab) ensuring that your actions are fair, non-discriminatory and comply with data protection obligations.

You should engage with individuals to understand their vaccination status and to clarify any concerns and reasons that they may have for refusing the vaccination.  As part of a fair and transparent process, you should consider a range of options to manage the situation including:

  • Alternative work,
  • Unpaid leave for a reasonable period to complete vaccination process
  • Audit of rationale for refusal, signpost reliable information if appropriate – highlight exemptions are limited and do not include religion/belief or disability unless covered as clinical reason for exemption

We are able to assist with drafting template letters, in preparation for the stages leading up to 3 February 2022 and 1 April 2022 and to assist with dealing with potential dismissals.

How should we deal with new joiners?

The proposed amendment of the Code of Practice on Infection Prevention and Control and its associated guidance detail that those newly joining the workforce will also need to be vaccinated in order to be deployed by a CQC registered person.

The registered person must only deploy those who have had their first dose of vaccination, with a second dose within 10 weeks.

The effect of the regulations for different staff based on the date that they are first employed or engaged for the purposes of the regulated activity A detailed response in respect of the operation of this provision is outside the scope of these FAQs but please get in touch if you consider that this may be applicable to your workforce.

Are there any temporary medical exemptions which apply for this sector, as with social care?

There are currently not any temporary medical exemptions which apply this sector.

Might we need to consider dismissal of some staff? If so, when will that be and what for?

Staff who have face to face contact with service users but are not compliant with the regulations or exempt, will need to either be redeployed or will not be able to fulfil their duties from 1 April 2022. 

If all alternatives have been exhausted and a fair process followed it may be fair to consider dismissing such staff either after 3 February 2022 because they have not had their first jab for “some other substantial reason”, or after 1 April 2022 because it would be a contravention of a statutory restriction to continue to employ them.  It may be necessary to consider pay staff in lieu of any element of notice that falls after 1 April 2022.  Advice should be sought on all of these issues and we can provide recommended processes to follow. 

Are staff booster jabs required too, as part of the fully vaccinated requirement?

The current guidance notes that the approach will not require boosters, however this will be “kept under review during 2022/23” and NHSEI guidance is clear that employers are strongly advised to provide supportive advice to workers to encourage uptake of the booster vaccine if eligible.

How should staff vaccination status be recorded?

It is expected that a record of vaccinations will be kept as part of staff employment or occupational health records.

This record must be kept securely in compliance with the UK GDPR and the Data Protection Act 2018.

Should we have a vaccination policy?

NHSEI guidance recommends developing (or updating) a policy on COVID-19 vaccination in partnership with staff side representatives, allows employers to outline the organisation's stance on vaccination and explain the role and expectations of managers, HR and employees.

We can assist with drafting policies for your organisation, in preparation for the mandatory vaccination requirement.

What should our next steps be?

  • Assessing current Covid-19 vaccination uptake amongst 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. The NHSEI guidance has recommended that formal redeployment of workers should not commence until the regulation has been approved by Parliament which is expected on 6 January 2022 (this date is subject to change);
  • 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;
  • Completing a local Equality Impact Assessment (EIA);
  • Drafting an action plan – noting key dates for action.

 

Please get in touch if you require assistance with any of the above. Due to our expertise in assisting our social care clients with the mandatory vaccination legal requirement for their sector, we are extremely well placed to provide tailored advice and support in preparation for 3 February 2022 and the 1 April 2022 commencement date for the wider health and social care sector.

If you would like to discuss this topic in more detail, please contact Jodie Sinclair on jodie.sinclair@bevanbrittan.com or Alastair Currie on Alastair.currie@bevanbrittan.com.

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