On 9 November, the Government stated health and social care workers, including volunteers who have face to face contact with service users, in England will now need to be vaccinated against COVID-19 by 1 April 2022, unless exempt. This was published in their response to the consultation on this issue (please see our previous alert as to the content of the consultation). There is already legislation making COVID-19 vaccination mandatory for staff working in the adult social care sector (the Care Regulations), please see our previous alert.
The consultation had also sought views about whether to introduce a statutory requirement to be vaccinated against the flu as a condition of deployment, however, the Government has decided not to proceed with this, at this time. It has stated it will keep it under review ahead of winter 2022/23.
What is the Government’s rationale for introducing mandatory vaccination?
The Government’s rationale is four fold:
- To further increase uptake levels of the COVID-19 vaccination amongst staff in health and care settings;
- The need to protect vulnerable service users and staff - The consultation response states that there is clear evidence that vaccines are effective at preventing infection. “Uninfected individuals cannot transmit, which means the vaccines are also effective at preventing transmission. Beyond preventing infection, there may also be the additional benefit of reduced transmission by those individuals who become infected despite vaccination, because of reduced duration or level of viral shedding”;
- To avoid disruption to services;
- To achieve parity of approach with care homes.
Who will be covered by this new requirement?
- The regulations will cover workers who have direct, face to face contact with service users, subject to limited exceptions. This will include front-line workers as well as non-clinical workers not directly involved in patient care but who nevertheless may have direct, face to-face contact with patients, such as receptionists, ward clerks, porters and cleaners.
- It will cover workers in health and social care settings, including hospitals, GP practices, and where care is delivered in a person’s home.
- The requirements will apply to CQC-regulated activities whether they are publicly or privately funded.
- They will also apply where a regulated activity is delivered through agency workers, volunteers or trainees, or contracted to another provider.
Exemptions:
As with the care home regulations, there will be exemptions. The following individuals will be exempt:
- under 18s;
- those who are clinically exempt from COVID-19 vaccination (for example workers who have a pre-existing diagnosis of anaphylaxis to the vaccination or its components. Further guidance and detail will be issued on this exemption);
- those who have taken part or are currently taking part in a clinical trial for a COVID-19 vaccine;
- those who do not have direct, face to face contact with a service user, for example, those providing care remotely, such as through triage or telephone consultations or managerial staff working in sites apart from patient areas;
- those providing care as part of a Shared Lives agreement as these arrangements involve the care recipient living in the home of the carer. The Government has said this will be treated differently as in many cases care recipients have lived in their homes for decades with people they view as their extended families.
Pregnant women are being encouraged to get the vaccine, however, the consultation response indicates it will introduce a similar temporary exemption to that which exists with the Care Regulations for pregnant women who choose not to be vaccinated. The short term exemption will expire 16 weeks after birth.
Time frame
The intention is that the requirements will come into force on 1 April 2022. There will be a 12-week grace period between the regulations being made and coming into force to allow those who have not yet been vaccinated to have both doses (the government has not included booster vaccinations in the requirement, at this stage). In the consultation response the Government explains that the delay in bringing in the requirement is in response to the concerns around the impact of implementing vaccination requirements during winter, when there will already be a significant pressure on services.
What does this mean for employers?
This is an expected development. As mentioned in our June alert, we expected healthcare to follow the lead of adult social care. Whilst a judicial review action has been brought against the Care Regulations this has so far failed before the courts (we understand an appeal is currently being considered).
As with the Care Regulations we expect that there will be a mixed reaction to proposed regulations. In one sense, it is helpful for employers who wish to ensure their staff are vaccinated. The regulations will give employers a statutory framework to require vaccination where persuasion has failed. That said, many employers will be concerned in light of the potential impact on staffing levels and morale – this was expressed in the stakeholder responses to the consultation. It may also leave Trusts open to legal claims for applying such laws. When the regulations come into force, employers will need to tread carefully before making any dismissal to ensure they can effectively defend any unfair dismissal or discrimination claims.
Our team are regularly advising in this area. Please contact us if you would like to discuss this issue in more detail.
