COVID-19: Mandatory Vaccination Regulations in health and care sector now enacted

Published 7 January 2022

The widely trailed The Health and Social Care 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2022 (“Regulations”) were made on 6 January 2022 and came into force today. The final Regulations are available here. These apply to all providers of “regulated activities” so any provider of health or social care services whether in the NHS or in the independent sector.

The Regulations require that all those who will have direct face-to-face patient contact with service users as part of CQC regulated activity are vaccinated against COVID-19 by 1 April 2022, unless exempt. Please see our previous alert.

There is a 12 week grace period before the enforcement of the mandatory vaccination requirement on 1 April 2022. This is intended to allow staff who have not yet been fully vaccinated to complete the course. Practically, this means that staff must have had their first dose of the vaccine by 3 February 2022, to ensure they can receive a complete course by 31 March 2022.

What does this mean for employers?

We predicated this this measure would come into place for healthcare providers in June 2021 (see our previous alert) and since the requirement has been in place for social care providers since November 2021, many healthcare providers will have taken the necessary steps to address this much anticipated development already.

Whilst the coming into force of the Regulations may persuade some currently unvaccinated staff to get vaccinated, they are unlikely to persuade everyone and their impact – on operations, staffing and morale – is potentially significant.

To the extent they have not done so already, employers caught by the Regulations should take the following steps:

• Communicate to affected staff that if they have not had their first COVID-19 vaccination by 3 February 2022 a process will follow which may lead to their dismissal by 31 March 2022.
• Commence/ expedite internal processes by which to determine which employees are caught by the Regulations. For front line workers this will be obvious. However the Regulations are likely to capture non-clinical staff not directly involved in patient care but who may nevertheless have direct, face-to-face contact with service users (e.g. receptionists, ward clerks, porters and cleaners). Employers will have to consider whether employees have direct face-to-face contact with service users. Where there is uncertainty, our experience is that employers are erring on the side of the Regulations applying in order to protect patient and colleague safety.
• Having identified who is in scope of the Regulations, employers should consider whether it is necessary to undertake a potentially large-scale termination exercise. We have seen that the fact that the Regulations have been much publicised already has had an impact on employees in healthcare and many have been encouraged to take up a full course of vaccination. Employers will need to consider the appropriate process for the remainder and this should take account of individual reasons for non-vaccination (particularly to ensure those who are exempt are not caught by a generalised approach) and redeployment. Even with a streamlined process this will be one of the more operationally challenging tasks for employers.

While the Department of Health and Social Care is expected to publish guidance for employers in the next week, the additional operational burden and the short timescales for implementation, at a time when the health and care sector is already stretched, means that employers must act without delay.

Related to the introduction of the Regulations, we have seen a number of suggested correspondence from interested groups which take issue with the principle of mandatory vaccination of staff. We are aware that health and care sector staff are being encouraged to send such correspondence to their employers. Employers will recognise that they are obliged to comply with the Regulations and that engaging in discussion regarding the principles or merits of mandatory vaccination will be unproductive. We consider that any grievances raised around the principle of mandatory vaccination can be dealt with as part of any termination process (or summarily where no such process is necessary).

Our team are regularly advising in this area. Please contact us if you would like to discuss this issue in more detail.