Mandatory Vaccinations – an update to the update… 01/02/22
On the 21st of January, Jessica Clough kindly provided information about mandatory vaccinations for care workers. We find ourselves in limbo, as we await further confirmation from the government. Please see below, an update to Jessica’s article:
As many of you will have seen or read, the continued implementation of Regulations requiring mandatory Covid-19 vaccinations of staff who work in a CQC facility or who undertake “regulated activities” in a service user’s own home has been paused as of 31 January 2022 and will now be subject to a fresh government consultation.
The proposed deadline of 1 April 2022 is no longer applicable.
At this stage, we do not know what the outcome of this fresh consultation will be; for example, it may be that the government will push ahead with legislation, or it may abandon mandating vaccines and adopt a guidance-based approach.
Whilst we await the next steps, we recommend case managers/clients pause the gathering of vaccination status data and vaccination discussions with staff.
This is not to say that vaccinate status may not have an impact on continued employment for those carrying out caring based roles; it is just that at this time, we await clarity from the government, CQC and from individual Trusts about how they want to proceed.”
Mandatory Vaccinations – an update 21/01/22
In this article, Jessica Clough, Trainee Chartered Legal Executive in Boyes Turner LLP’s Employment Team, considers what employers can do to start preparing for the new rules which will make coronavirus vaccinations compulsory for all care staff.
The New Rules – update
On 7 November 2021, the government announced that it would be rolling out the requirement for mandatory vaccinations for coronavirus/Covid-19 to all health and social care staff and ancillary workers, not just those providing care in a hospital or care home setting.
The announcement stated that
“Health and social care workers, including volunteers who have face-to-face contact with service users, will need to provide evidence they have been fully vaccinated against COVID-19 in order to be deployed“.
Those rules have now been enacted in the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus)(No. 2) Regulations 2022. There is a 12 week grace period between the rules coming into force on 7 January 2022 and starting enforcement action, to allow time for people to get both doses of their vaccinations. Enforcement action will commence from 1 April 2022.
The minimum length of time between a first and second dose is currently 8 weeks, meaning carers intending to be fully vaccinated by 1 April 2022 will need to have had their first dose by the 3 February 2022, at the latest.
The new rules do not currently include a requirement to have received a booster vaccination, only the first two vaccination doses of a UK approved vaccine such as Pfizer/BioNTech, Oxford/AstraZeneca or Moderna – although this may change in the future. Please be aware, three doses may be required for vaccine brands which are less common in the UK.
Under the new rules, those who are unable to be vaccinated for clinical reasons will be exempt from the requirement to be vaccinated. There are clinical exemptions for certain medical conditions, mostly for those with extremely high allergies or previous severe reactions to vaccinations. Fear of needles or the belief that coronavirus is a conspiracy theory are not covered by the exemptions.
Other exemptions apply for those under 18 years of age, for relatives of the service user who are living in the same property, for emergency maintenance workers and emergency service staff, and for those taking part in clinical trials of Covid-19 vaccines.
A temporary clinical exemption also applies to pregnant staff. Whilst the coronavirus vaccine has been declared safe for pregnant women, and they have been encouraged to take up the vaccine, the Government is allowing pregnant women to choose to delay their vaccination until after birth. This temporary exemption expires 16 weeks after they have given birth, they will then be required to get vaccinated before returning to work.
Please note, those staff who have recently had Coronavirus will not be considered exempt from the requirement to be vaccinated.
Responsibility for checking vaccination status
The CQC “registered person” is responsible for ensuring that anyone who enters a Service User’s home to provide personal care has been checked and has provided proof of their vaccination or exempt status first. This will include any agency workers, interns and volunteers, and other visitors to the Service User such as hairdressers and Occupational Therapists.
Proof of vaccination can be provided either using the CovidPass via the NHS App, or by a letter from the NHS. An appointment booking card is not sufficient proof. The registered person must keep a record of the date the vaccination/exemption status was checked and who carried out that check. Fortunately, once someone has been checked they do not need to be checked again each time they visit the Service User.
These new regulations are a source of great concern to many parents and Deputies who are worried they will lose good care staff as a result of this requirement, at a time when it is harder than ever to recruit.
So, what can employers do to prepare for the new rules coming into force?
If you are currently recruiting, make sure your candidates are aware that you are only able to make job offers to candidates who are either vaccinated or who fall within one of the specified exemptions. Set out clearly in any job adverts that candidates will be asked about their vaccination status and that any job offers will be conditional on providing satisfactory proof of vaccination or exempt status.
There is now a temporary exemption for newly hired employees (commencing between 7 January and 1 April) who can show they have received their first vaccination at least 21 days before starting employment. Their temporary exemption runs for a period of 10 weeks, starting at the date they received their first vaccination, however, this exemption will lapse if they have not received their second vaccination by the end of that period.
What can we do about existing staff?
Employers understandably want to find out whether their existing staff have been vaccinated so they can plan ahead for any holes likely to develop in their care teams as a result of the new Regulations.
- Inform your existing staff about the new Regulations and the deadlines involved. Set out that you will be asking them about their vaccination status and asking them to provide evidence to support what they say. This could be done via a letter to staff, attaching a vaccination status declaration form for staff to complete and return to you. Alternatively, employers could choose to hold a meeting with staff to discuss the matter first, and then follow up with a letter setting out what was discussed and asking them to confirm their vaccine status. Having a meeting first will allow staff to ask questions and encourage friendly and open discussion about vaccinations within care teams, which may be useful if you have anyone who is hesitant to get vaccinated.
- Review and follow up – review how many staff claim to be vaccinated or exempt and follow up with them.
a. For those who claim they are already fully vaccinated, ask them to provide evidence and record that this check has been carried out.
b. For partially vaccinated existing staff, gather evidence of their first vaccination and discuss with them whether they have arranged a date for their second dose yet/ when they will be eligible for their second dose. If this will fall after 1 April, you may have to consider asking them to take some annual leave, or unpaid leave, for a period of time until they have had their second dose and are able to return to work. If this is not feasible then other options may need to be considered.
c. For those who claim they are exempt, a further discussion may be needed to find out on what basis they believe they are exempt and to check if their reason does actually fall under one of the clinical or other exemptions set out in the Regulations. They will need to provide evidence that an exemption applies to them, such as a letter from the NHS confirming they cannot be vaccinated, or their MAT B1 (in the case of pregnant employees).
- Follow up with unvaccinated staff – for staff who reveal they are unvaccinated, have a follow up meeting to discuss, in a friendly way, their reasons for this. Ask about their concerns and try to encourage them to consider getting jabbed. Be supportive of those who are unsure about getting vaccinated, see if they can be gently persuaded.
Point out that a lack of vaccination will affect their ability to stay in their job after 1 April 2022, unless an exemption applies to them. However, do not bully or threaten staff to get their jabs by saying if they don’t have them then they will lose their jobs.
4. Dismissal process – Unfortunately for those staff who remain unwilling to be vaccinated, dismissal may be the only option available. The reason for the dismissal will be because “the employee could not continue to work in the position which he/she held without contravention (either on his/her part or on that of his/her employer) of a duty or restriction imposed by or under an enactment” (s.98(2)d) Employment Rights Act).
Employees with 2 years’ service are entitled to a fair dismissal process, which means there should be ongoing discussions with them to try to persuade them to get vaccinated and to discuss alternative options to dismissal with them, such as the possibility (or otherwise) of redeployment. Once a fair process has been followed staff may be dismissed and should either work (if possible) or be paid their notice in lieu.
5. Infection control and Risk assessments – continue to remind staff about the importance of maintaining infection control measures, particularly during winter months and when coronavirus case levels are high, whatever their vaccine status. Vaccines, while very helpful, are not the only source of protection against infection for service users and therefore the importance of maintaining other Covid-19 infection control measures, such as handwashing, good ventilation, being alert to symptoms and mask-wearing, should not be overlooked. This is particularly the case where some staff (or the Service user and their family) are unvaccinated (and an exemption applies). For those who are exempt from vaccination for clinical reasons Case Managers may wish to carry out Risk Assessments to ensure measures are in place to reduce risks and to identify any additional support they may require.
6. Data Protection – Don’t forget that medical data, which includes vaccination status, is “sensitive” personal data for the purposes of General Data Protection Regulations and Data Protection Act 2018, so should be stored securely and access to it should be limited to only those who need to know for one of the purposes set out in your Privacy Notice. Data should be retained only for so long as is necessary and should be corrected if it becomes inaccurate.
If you have any questions relating to this article or have any employment issues you would like to discuss, please contact the Boyes Turner Employment team on firstname.lastname@example.org . Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.
Please note: While we endeavour to ensure information is up to date, government advice and requirements around this matter are subject to change, sometimes with limited notice.
Jessica is a trainee chartered legal executive in the employment team, providing legal support and assistance to clients on a range of employment law areas from drafting contracts and policies to advising on dismissals and redundancies. Her particular areas of speciality within the employment field include working with the care sector and Boyes Turner’s Court of Protection team.