***Please note this article was up to date as at 17 January 2022. For the latest guidance on this topic, please refer to our most recent update.***
Vaccination as a Condition of Deployment (VCOD) for Healthcare Workers (“Phase 2 Guidance”) was published on 14 January 2022 and these FAQs provide a summary of some key points arising from the updated guidance.
These FAQs should be read in conjunction with our series of FAQs, the most recent update published on 7 January 2022 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 17 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.
1. If staff remain unvaccinated, can we start the dismissal process prior to 3 February 2022?
We advise strongly against implementing any dismissal decisions prior to 3 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.
2. How can we obtain proof of vaccination from staff?
The updated 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.
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. 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”.
4. 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, which is wholly or 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 and to review commercial contracts. 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.
Please get in contact with us for any assistance with providing model letters, which can be sent to third party contractors.
5. How should we be communicating with staff prior to the Regulations coming into force?
Healthcare organisations should already be 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.
6. If staff remain unvaccinated following an initial informal meeting, what are the next steps?
From 4 February 2022, staff who remain unvaccinated should be invited to a formal meeting (in person or virtual), chaired by an appropriate manager, in which they are notified 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.
7. 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
If an individual indicates that they are in the process of applying for a medical exemption, you should follow up with this and ensure you have referred the individual to Occupational Health for relevant advice, as well as completing a risk assessment and considering any additional support which may be required.
8. 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.
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. 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. Vaccination as a condition of deployment in health and social care settings: our role | Care Quality Commission (cqc.org.uk)
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.
11. Is there any further advice on which roles will be in scope of the Regulations?
The updated NHSEI guidance does not provide any further advice on determining potential roles that may be in/out of the scope of the Regulations and instead refers to the previously published VCOD flowchart in Phase 1 of the Guidance, Appendix 1 (C1470-vcod-for-healthcare-workers-planning-and-preparation-guidance.pdf (england.nhs.uk) – page 25).
If you require any specific advice on this, please get in touch.
12. How should individual’s data be dealt with?
Firstly, the guidance confirms that organisations should complete a Data Protection Impact Assessment to identify the risks that may arise from the planned use of staff vaccination status information, including ways in which to mitigate any risks.
An ‘appropriate policy document’ to set out how the processing of staff complies with the law, together with an updated or bespoke Privacy Notice will need to be put in place. This will need to reflect how vaccination data will be used, including how it is gathered and the lawful bases relied upon.
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.