07/01/2022

These FAQs should be read in conjunction with our recent FAQs published on 9 December 2021 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 7 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.

 The Regulations were made yesterday, 6 January 2022 and the 12 week grace period has now commenced.

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

FAQs

1. As the Regulations have now been passed, what are the relevant next steps for healthcare organisations?

The first step should be to ensure your existing communications are updated to reflect that the Regulations have been passed and it is now a legal requirement that workers with direct face to face contact with patients/service users are fully vaccinated from 1 April 2022. Please get in touch with us to review any draft communications.

As the timescales are tight, we recommend working to a timeline which includes but is not limited to the following:

  • Holding 1:1 discussions with staff; continuing to drive vaccination uptake for those unvaccinated and continuing to seek/record vaccination status of those caught by the Regulations
  • Where appropriate, carrying out staff side consultation and an Equality Impact Assessment
  • Identifying staff that are not considered to be “in scope”
  • Considering redeployment opportunities (where there are no suitable opportunities available and a decision is made to dismiss, line managers and staff should continue to consider redeployment opportunities throughout the notice period)
  • Reviewing processes around notice/termination

Please get in touch for further guidance on:

  • The timings that should be followed
  • If assistance is required with regards to preparing a timeline tailored for your organisation (we have a model timeline available) and
  • How we can assist with the next steps, in preparation for 1 April 2022.

2. What is the process for checking an individual’s Covid Pass?

In order to check the barcode displayed on an individual’s COVID Pass or letter, you should use the official NHS COVID Pass Verifier app. This is a secure way to verify an individual’s NHS COVID Pass presented on the NHS App or via downloaded PDF or wallet versions.

It verifies that they have been fully vaccinated against COVID-19, had a negative test, or have recovered from COVID-19. It can also scan the 2D barcode of an NHS COVID Pass letter.

3. How should we deal with vaccine hesitant individuals?

We recommend arranging an initial informal conversation with the individual and a line manager/OH to discuss their concerns sensitively. During this conversation, you should seek to understand the individual’s hesitancies and consider what you may be able to offer the individual, to alleviate their concerns and as part of a broader wellbeing discussion.

We can assist support you with a “script” for conversations of this nature.

4. If an individual states that they are exempt, what are the next steps?

They will firstly need to provide proof of this (either the NHS Covid Pass, the NHS App Online or a letter stating they are medically exempt). They do not need to confirm what the specific exemption is (although a letter confirming they are medically exempt will set this out).

If not already done so, we would recommend referring the individual to Occupational Health for relevant advice, as well as completing a risk assessment and considering any additional support which may be required.

5. If an individual decides to have their vaccine at the last minute, how should we approach this?

As individuals will need to have had their first dose of the vaccine by 3 February 2022 in order for organisations to be compliant by 1 April, 2022, if an individual indicates that they do plan to get vaccinated after this date, we recommend that you implement a common process for dealing with this scenario. We can advise separately on your options for potential common processes.

We would suggest a set period of time to offer these individuals to get vaccinated and that they will need to take leave to make this possible e.g. 2 weeks from 3 February.

If you require further advice on this then please get in touch.

6. How do we determine which staff within our organisation will be in scope?

The Regulations provide that staff who will have direct, face to face contact with patients will fall within scope of the mandatory requirements which will cover both clinical and non-clinical staff such as receptionists, volunteers, cleaners, catering staff and others.  Most organisations are taking a very inclusive approach to the interpretation of this scope, meaning that very few roles are not included.

The NHS England Phase 1 Guidance sets out a number of scenarios by way of examples to inform assessments around scope.  We are awaiting further Guidance and will provide updates in due course.

7. If the vaccine is mandatory, does that mean I don’t need to think about Data Protection in how I use personal data of employees?

No, the Regulations explicitly state that the Data Protection legislation must still be complied with and any use of personal data for dealing with mandatory vaccination issues must be used lawfully, fairly and transparently.

8. What would be my lawful basis for processing personal data for complying with the Regulations?

This will depend on whether you are an independent healthcare organisation or public sector body. 

Given you will be processing information about the health of employees, you will be processing both personal data and special category data and accordingly will need to satisfy conditions in both Article 6 and 9 of the UK GDPR. 

For public sector organisations, it is likely you can rely on Article 6(1)(e) in that the processing is necessary for your public tasks. 

For those in the independent healthcare sector, the ICO guidance suggests that legitimate interests under Article 6(1)(f) will be applicable (and a legitimate interests assessment should be completed). 

In relation to the Article 9 condition, it is likely that Article 9(2)(b) and Article 9(2)(i) may be available as the processing is necessary for obligations in the field of employment and also relates to wider public health issues.

9. Are we entitled to share individual’s vaccination status with their line managers?

It is likely to be lawful for managers to be given details of those who they supervise who have not been vaccinated to enable a conversation regarding any concerns/the next steps.  It is likely to be impractical for this to be carried out by one person. 

We recommend that managers have conversations with their staff and that each manager is provided with details of those under their supervision who have not yet been vaccinated.  It is important that managers are made aware that the information is confidential and should not be shared more widely and will be subject to Data Protection obligations.

10. If staff have confirmed they do not intend to be vaccinated, when can we start giving notice?

We recommend that you do not begin to give notice to staff until after the 3 February 2022 (when the first dose is required) – to do so beforehand poses potential litigation risk.

As there are likely to be staff who are entitled to 3 months or 12 weeks’ notice, whilst you may wish for staff to work out their notice period, due to the lengths of some notice periods, you may need to give a payment in lieu of notice (or part thereof) or temporarily redeploy or request that they work from home for any period after 1 April, 2022.

Please get in touch with us for specific advice around the exit process that your organisation should be following.

11. What consultation obligations do we have?

The NHS England Phase 1 guidance recommends engagement with unions and staff-side in relation to a supportive approach to “encourage workers to be vaccinated, inform staff, discuss concerns and consider practical and operational issues”. 

It is not currently being suggested that there are broader collective consultation obligations in relation to the potential termination of employment of staff.

 

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

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