Mandatory vaccinations required for front line workers
On 5 October 2021, we wrote about the mandatory vaccination requirements for care home workers (here). The Scientific Advisory Group for Emergencies ("SAGE") Social Care Working Group advised that there was a strong scientific case to have a similar approach to vaccination offers and support in NHS inpatient settings, given the close and overlapping networks between residents or patients and workers of all kinds in both. Following this, on 9 September 2021, a six-week consultation was carried out by the Department of Health and Social Care ("DHSC"). At that stage, 92% of NHS staff had had their first dose and 88% both doses of a COVID-19 vaccine.
It therefore won't come a surprise to many that the Government has now announced its proposal to introduce mandatory vaccinations for front line workers. The decision will result in the Government making a further amendment to the Health and Social Care Act (Regulated Activities) Regulations 2014.
Who will be required to get a mandatory vaccination?
Those deployed by providers of CQC-regulated activities in the health and social care sector who have face-to-face contact with patients and service users must be fully vaccinated unless they are exempt.
Full vaccination means that individuals must have received a full course of COVID-19 vaccination in line with the UK Health Security Agency ("UKHSA") guidance. Front line workers, as well as non-clinical workers not directly involved in patient care, such as receptionists, ward clerks, porters and cleaners, will all be caught by the new rules. The requirements will apply whether a regulated activity is delivered through agency workers, volunteers or trainees or contracted to another provider.
The consultation confirmed that those who are medically exempt will not be required to have the vaccine. However, the CQC-registered person must have seen evidence of their medical exemption before they can deliver care. It is currently unclear what other exemptions will apply.
When will vaccinations become mandatory for front line workers?
It is proposed that implementing regulations will come into force on 1 April 2022 after a 12-week grace period to give employers and workers in the health and social care sector time to meet the new regulatory requirements.
What happens if employees do not have the vaccine by the deadline?
As it will not be legal for employees or workers who have face-to-face contact with patients to continue their normal duties until both vaccinations have been received, employers should start to consider and implement procedures to manage staff who do not have both vaccines by the implementation date. It is best practice to involve staff in this preparation.
Whilst no formal guidance has yet been published, we expect the approach to reflect that taken by the Government for care home workers. This emphasised that employers should explore all options available to staff who do not have proof of the vaccine and do not fall within an exemption by the implementation date. This could involve redeployment to alternative roles, such as those without face-to-face contact with patients. Alternatively, where alternative options are exhausted, it is likely that (as long as the employer follows a fair process) the regulations may provide a fair reason for dismissal and employers are likely to be protected from discrimination claims on the grounds of age, disability, religion or belief if they are following the regulations.
What should front line employers be doing?
Further guidance will be produced prior to the implementation of the amended regulations. To prepare, affected employers should consider:
- adopting a written vaccination policy;
- reviewing their privacy notices and data protection policies to ensure that they are transparent as to the personal data that will be processed to comply with the amended regulations; and
- liaising with their workforce between now and the implementation of the vaccination requirement on 1 April 2022 to understand who is already compliant with the amended regulations.
We will provide a further update once the Government releases additional guidance.