New Regulations on Mandatory Coronavirus (Covid-19) Vaccinations for Health and Social Care Workers

Following parliamentary approval on 14 December 2021, the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2021 (the Regulations), which implement mandatory Covid-19 vaccination for health and care workers, was signed into law on 6 January 2022. The Regulations will have great ramifications for the health and social care sector, whilst they also implement changes to rules governing workers in care homes.

What do the Regulations mean for care home and health and social care workers?

As set out in Siobhan’s article last week, the Regulations extend the current rules on mandatory vaccination. With effect from 1 April 2022, mandatory vaccination will be extended to those working in ‘any other regulated activity’ beyond care homes. These regulated activities include but are not limited to: nursing care (to include in a person’s own home), personal care, nursing accommodation, treatment of disease or disorder, diagnostic procedures and maternity and midwifery services.  There are some exceptions to these regulated activities including:

1. Any activity, which is for no commercial consideration and carried on in the course of a family or personal relationship; and and
2. Treatment provided in a school to pupils by a nurse who is engaged and directed by the school.

The Regulations also amend the current rules for care home workers. With effect from 7 January 2022, the Regulations implemented the following changes in relation to such workers:

1. Individuals who have not previously been employed or engaged in a care home can be deployed if they have received a single dose at least 21 days before starting work. The second dose must be received within 10 weeks of the first dose; and
2. There is an exemption for those participating in clinical trials.

The usual medical exemptions will apply to the Regulations.

How have the Regulations been received?

The House of Lords expressed several concerns regarding the Regulations as drafted, ahead of signalling approval on 14 December 2021. These included:

1. Government failure to publish a “full impact assessment”;
2. The Regulations posing a “significant workforce capacity risk” to the health and social care sectors;
3. The need for a “fuller and clearer statement” of how the related care home regulations had affected the care home workforce; and
4. The need for the Government to provide supporting evidence for permanently requiring frontline NHS staff to have received two doses of an approved Covid-19 vaccine “as a condition of further deployment”.

These concerns have also translated outside of parliament and nursing and midwifery leaders have called for a delay in the introduction of mandatory vaccines in fear of a mass departure of workers from the sector, calling the move “self-sabotage” (Pat Cullen, Royal College of Nursing General Secretary and Chief Executive).

In contrast, the Secretary of State for Health and Social Care, Sajid Javid, said that the regulations would help “give patients and staff the best possible protection” particularly those who are most vulnerable.

What do the changes mean for employers in the health and social care sector, and their staff?

The changes to the rules for care home workers may be a welcome addition for employers. The flexibility given to employ a worker who has had a single dose of the vaccine and is due to receive their second dose, in addition to those who are fully vaccinated, means that the worker pool is increased.

The extension of mandatory vaccination to health and social care workers in regulated activities means that workers will need to have had their first dose by 3 February 2022. It would be beneficial for employers to commence open conversations with their workforce to understand who is compliant with the Regulations, ahead of 3 February 2022.

Employers should also look to implement or review and amend any written vaccination policy, and their Privacy Notices and data protection policies to ensure continued compliance. Given the debate on the extension of mandatory vaccinations, employers should keep abreast of any further amendments or government guidance over the following year.

If you are in any doubt concerning action to be taken in relation to members of your workforce, please contact a member of the Employment team at Michelmores for advice.