02/12/2021

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 2 December. Whilst the draft Regulations have been published, at the time of publication of these FAQs, formal government Guidance had not been issued.

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.

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 guidance on this issue, although the Government’s Consultation response 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.

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. 

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.

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. There are likely to be other staff engaged by organisations such as agency workers, contractors, volunteers, clinical staff engaged via practising privileges and other arrangements who will be within scope of these new requirements. 

Can we ask our existing staff their vaccination status?

Yes but at this stage we would recommend taking considerable care 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?

Further guidance on the process for this in the wider health and social care sector is awaited.  However, in terms of the current application in the case of care homes, individuals are able to self-certify as medically exempt if they are vaccinated abroad.

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 Draft Regulations include a provision which permit a registered person to employ or engage a worker for the first time (new starters) after the Regulations are made, for a limited period, when that worker has been ‘otherwise vaccinated’ but has not had a top up dose; or has had only a single dose of an authorised vaccine.

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 for 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”.

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
  • 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.

 

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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