The government has announced that all frontline health and social care workers in England, including volunteers, must be fully vaccinated against Covid-19 as a condition of deployment from Spring 2022. The rule will apply in all health and social care settings regulated by the Care Quality Commission (CQC). It will apply to all workers, volunteers and ancillary staff who have direct contact with patients in healthcare settings or in patient homes, including:
- Care workers
- Health care assistants
- Ward clerks
- Porters and cleaners
This will extend the regulations (The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021) which currently only allows regulated care homes to legally require workers to be vaccinated/exempt.
What is a CQC-regulated activity?
This covers quite a lot of things like all NHS patient services, personal care in the home and in care homes whether public or private. Anyone likely to interact with vulnerable people receiving care in health and social care settings including, but not limited to, hospitals, GP practices and also in a person’s home are in scope.
There is an exemption for Shared Lives carers, where the carer lives with the care recipient.
Who is covered by this announcement?
The announcement on mandatory COVID-19 vaccination is for health and care staff in England only at the moment.
What is the timeline for implementation?
The regulations are expected to come into force on 1 April 2022, subject to the passage of the regulations through Parliament. In advance of this date, the government approach will include a 12-week grace period from when the regulations are made to when the regulations come into force. This period is intended to give providers and workers the time to meet the new regulatory requirements. Under current vaccination guidance eight weeks are required between the first and second vaccine dose.
On 6th January 2022 (this date is subject to change), the 12 week grace period commences. If the regulations are approved, unvaccinated individuals will need to have had their first dose of an approved COVID-19 vaccine by 3 February 2022 (this date is subject to change), in order to have received their second dose by 1st April 2022.
Will there be any exemptions?
Yes, there will be some limited exemptions. These include those under 18, those clinically exempt, those taking part in a COVID trial, those without face-to-face contact and those providing care as part of a shared lives agreement.
Who can get a clinical/medical exemption?
Some individuals are unable to be vaccinated and also, in some cases, tested for medical reasons. Those individuals can apply for proof that they have a medical reason why they should not be vaccinated or why they should not be vaccinated and tested.
Those who have proof of medical exemption will be able to use the NHS COVID Pass whenever they need to prove their COVID-19 status in England. The possible reasons for exemptions are limited. Examples that might be reasons for a medical exemption are:
- people receiving end of life care where vaccination is not in the person’s best interests
- people with learning disabilities or autistic individuals, or people with a combination of
- impairments where vaccination cannot be provided through reasonable adjustments
- a person with severe allergies to all currently available vaccines
- those who have had an adverse reaction to the first dose (for example, myocarditis)
Other medical conditions could also allow an individual to get a medical exemption.
Short-term exemptions will also be available for those with short-term medical conditions and as an option that some pregnant women may choose to take.
Pregnant women can alternatively use MAT B1 certificates to show their COVID status, if they choose to use a medical exemption. Pregnant women do not need to apply for a medical exemption NHS COVID Pass if they have a MAT B1 certificate. For pregnant women the exemption will expire 16 weeks post-partum. This will allow them to become fully vaccinated after birth.
What evidence is required to demonstrate COVID-19 vaccination?
Staff will be required to demonstrate they have completed a course of an approved COVID vaccine. The Department for Health and Social Care consider that a person will have provided a registered person with appropriate evidence to demonstrate that a person has been vaccinated with an authorised vaccine or has otherwise been vaccinated against coronavirus if they have provided one of the following types of evidence:
- The vaccination record within the NHS COVID App or equivalent from NHS Scotland, NHS Wales or the Department of Health in Northern Ireland; or
- The vaccination record within the NHS COVID App accessed via the NHS website – NHS.uk; or
- The NHS COVID Pass letter; or
- The EU Digital COVID Certificate; or
- The Centers for Disease Control and Prevention vaccination card; or
- A certificate in English, French or Spanish issued by the competent authority which contains:
a) A person’s full name;
b) Date of birth;
c) The name and manufacturer of the vaccine that a person received;
d) The date that a person received each dose of the vaccine; and
e) Details of either the identity of the issuer of the certificate or the country of vaccination,
NHS appointment cards cannot be used as proof of vaccination status.
Individuals who are vaccinated abroad will be required to provide evidence of their vaccination status and, where necessary, have a top-up dose with a UK authorised vaccine consistent with the UK Health Security Agency (UKHSA) guidance on vaccines. To avoid doubt, mixed doses (that is, where different vaccines have been administered to complete the dose schedule) will be accepted for the purposes of the vaccination requirements.
What evidence is required to demonstrate clinical exemption from COVID-19 vaccination?
The Department of Health and Social Care consider that a person will have provided a registered person with appropriate evidence to demonstrate that for clinical reasons a person should not be vaccinated against coronavirus if they have provided one of the following types of evidence:
- NHS COVID pass or equivalent from NHS Scotland, NHS Wales or the Department of Health in Northern Ireland; or
- Non-digital equivalent of those listed above; or
- Where a person is not registered with a GP in the UK, confirmation in writing from the clinician responsible for a person’s treatment, or with direct knowledge of a person’s condition, that a person should not be vaccinated with an authorised vaccine.
- Individuals who have a GP in the UK and who are applying for a clinically reviewed medical exemption will automatically get the results of their application by post 2 to 3 weeks after applying. This notification letter can be used by an individual to prove their exemption status.
- Pregnant women can also use a MAT B1 certificate to prove exemption status.
What evidence is required to demonstrate exemption from COVID-19 vaccination due to participation in clinical trial?
The Department of Health and Social Care consider that a person will have provided a registered person with appropriate evidence to demonstrate that a person has participated or is participating in a clinical trial, if a person provides confirmation in writing, from the organiser of the clinical trial, to the registered person, that the clinical trial that a person is participating in/has participated in is:
- For a vaccine against coronavirus; and
- Is regulated by one of the regulatory bodies
A record should be kept of the vaccination or exemption status of all staff members and the date this was last checked. Guidance suggests that where an individual has a medical exemption, the reason for the exemption should not be recorded in order to protect their confidential medical information and comply with the UK GDPR. A registered person may need to share the CQC provider’s records with the CQC to demonstrate that medical exemptions have been checked.
The records kept must be processed in accordance with the employer’s data protection obligations. Guidance suggests that existing data protection and privacy documentation are reviewed and updated to ensure compliance with the regulations. Particular consideration should be given to who has access to the data, how much data is processed and the storage of the data. There should be a policy document outlining the provider’s procedures for complying with their data protection obligations, and policies about retention and removal of personal data.
Should employers consult with staff regarding the mandatory requirement?
Employers should engage with their workforce early about the new regulations. Employers can use the
12 week grace period to:
- consider and amend their policies including if necessary any privacy information and data protection impact assessment
- implement new or different working practice
The grace period can also be used to engage with staff and service providers about:
- the vaccination requirement
- the need for people over 18 providing work or services to evidence vaccination or medical exemption
- the potential consequences of not meeting the requirement on time
Employers are advised to comply with collective consultation obligations that may apply where there are 20 or more unvaccinated employees in a health or social care sector setting. Where a trade union is recognised or employee representatives are in place, there may be a legal duty to consult. This is because any measures may affect the health and safety of staff.
Where a trade union is recognised or employee representatives are in place, this may be the best forum to begin with. They can help with consulting, understanding and addressing any collective issues, and discussing practical and operational issues. This could also include consultation on ways and means of avoiding dismissals, reducing the number of dismissals and mitigating their consequences, as well as how employees will be selected for any alternative roles where the requirement to be vaccinated does not apply.
Before and/or after any collective engagement, it may be helpful to provide a written summary to staff. This can be used to explain the requirement and what it means for them. This may avoid misunderstanding about what is required, and what it means for staff.
There may also be a legal duty to collective consult under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992. In brief this requires that where 20 to 99 dismissals are proposed at one establishment within a 90 day period, consultation must begin at least 30 days before the first dismissal is due to take effect. Where 100 or more dismissals are proposed at one establishment within a 90 day period, consultation must begin at least 45 days before the first dismissal takes effect.
BEIS must also be notified in advance of these timeframes. Whether an employer will be obliged to collectively consult in these circumstances is dependent on whether dismissals of unvaccinated employees are for a reason ‘not related to the individual concerned’. It might be argued that a dismissal because an individual is unvaccinated is ‘related to the individual concerned’ and is therefore outside the scope of section 188. Specialist legal advice should be sought in this situation.
Employers are advised to individually engage with their workforce to identify:
- Those who can comply with the requirement for vaccination or exemption and can provide evidence
- Those who can comply with the requirement for vaccination or exemption but cannot provide evidence
- Those who are not yet fully vaccinated but will arrange to do so before 1st April 2022
- Those who are not yet fully vaccinated and are unlikely to be fully vaccinated before 1st April 2022
- Those who do not wish to be vaccinated and are not exempt
- Those who will be under the age of 18 on 1st April 2022 but who will have to comply with the requirement when they turn 18
- Employers should inform staff on leave, such as maternity leave or long-term sick leave, of the requirement for vaccination or exemption to ensure that a lack of knowledge does not prevent those staff members being able to return to work.
It is a good idea for employers to discuss with their staff:
- The law and when it will apply
- Who will need to be vaccinated
- Who is exempt
- How employers will check if someone is vaccinated
- How a worker should prove that they are vaccinated or exempt
- How the employer will use, store and delete vaccination data, in line with the UK GDPR
- How staff can book a vaccination, if they are not yet vaccinated
- The employer’s policy for time off work relating to being vaccinated, including sick leave where an individual suffers side effects
- The options for staff who are not able to deliver CQC regulated activities in patient facing roles
- How staff can ask questions or raise an issue if they have any concerns
How to deal with staff who are not vaccinated or exempt from vaccination?
Employers are advised to give staff that cannot comply with the requirement a reasonable opportunity to obtain vaccination or evidence of exemption before formal action is taken. Employers should set out the timescale for the requirement to be complied with and the steps that will be taken if it is not complied with. The timescales should allow for any formal process that will be followed and notice of termination to be served, if appropriate.
Employers should consider whether to offer paid or unpaid leave to such workers. This cannot be a long-term solution, because the regulations do not have a time limit. Leave may be considered appropriate where a worker demonstrates intent to get fully vaccinated but has not completed the full course by 1st April 2022. This may also apply where there are delays in obtaining evidence of medical exemption.
Employers should ensure that any process followed is non-discriminatory. Employers should consider potential reasonable adjustments for disabled workers when setting deadline for vaccination or when arranging formal hearings. If a worker is not able to provide proof of vaccination or exemption, the worker’s manager should explore all options available and any support the employer can offer. While workers are advised not to assume that they will be redeployed, consideration should be given to any alternative roles where vaccination is not required i.e. non-patient facing roles.
Where there are multiple workers to be redeployed, employers should use objective and nondiscriminatory selection criteria to determine who will be redeployed. It is recommended that formal redeployment of workers should not commence until the regulation has been approved by Parliament which is expected on 6 January 2022 (this date is subject to change).
How to deal with staff who are exempt?
Registered persons can continue to use workers for whom vaccination is not clinically appropriate, however, managers should take steps with regards to ensuring the health and safety of both the individual, other workers, patients and visitors. Managers will be required to update existing risk assessments to ascertain the potential risk of COVID-19 spread caused by unvaccinated (but exempt) workers and to identify the level of risk of exposure to the individual, other workers, patients and visitors. As a result of this assessment, managers may be required to put in place other ‘measures’ and reasonable adjustments to help reduce the risk, which may include reviewing current personal protective equipment (PPE) use, regular lateral flow testing, remote working, sufficiently ventilated workplaces, cleaning regimes and hand hygiene etc.
What are the consequences for failing to comply with the mandatory requirement?
Subject to Parliamentary approval, from 1st April 2022, registered persons must ensure that they do not allow anyone to deliver CQC regulated activities in a patient facing role, unless they have had a complete course of doses of an authorised vaccine or fall into one of the exempted groups.
Therefore, if staff are unable to provide proof of vaccination or an exemption, they will be unable to continue in their current role once the regulations come into force. This means that if there are no options for redeployment (i.e. to a role where this requirement is not applicable), dismissal may be the only other alternative.
In light of the above, employers should liaise with all unvaccinated staff between now and 1st April 2022 (subject to Parliamentary approval) to determine which members of staff do not wish to take up the offer of the vaccine and discuss with those staff members what other options may be available to them, including redeployment to a non-patient facing role if available. If those members of staff still do not wish to take up the offer of the vaccine and there are no options for redeployment, employers may have no option but to terminate their employment as to continue their employment in their current role would be a breach of the regulations and is therefore unlawful.
Is dismissal of a worker (in the health and social care sector) who is not fully vaccinated potentially fair and is notice of termination required?
Employees who have been continuously employed by their employer (or by associated employers) for 2 years usually have the right not to be unfairly dismissed.
An employee may be fairly dismissed if:
- there is a potentially fair reason to dismiss
- the reason is sufficient to justify dismissal
- the employer has followed a fair procedure
Dismissal of an employee in this sector who is not fully vaccinated (and is not exempt from the requirement to be fully vaccinated, in the case of workers in the health and social care sectors under regulations still to be made) may be potentially fair based on the following reasons:
- Statutory Restriction i.e. the employee cannot continue to work in the position they hold without either the employer or the employee contravening “a duty or restriction imposed by or under an enactment” (section 98(2)(d), ERA 1996); or
- “Some Other Substantial Reason” (SOSR) (in cases such as, a refuses to accept changes to terms and conditions, pressure from third parties etc.)
Where it is possible, under the contract of employment or with the employee’s express agreement, to redeploy an employee, these reasons for dismissal may not be applicable. This would be the case when the employee can be redeployed to other duties where vaccination is not a requirement.
Other reasons for dismissal may arise with the introduction of the requirement. For example, if an employee dishonestly provided false evidence of vaccination, this is likely to amount to misconduct and may even amount to gross misconduct.
Procedure (this relates to individual consultation, i.e. where collective consultation is not required)
Employers should ensure that they follow a fair procedure in dismissing unvaccinated employees (including considering whether any alternative employment exists). Before dismissing an employee, employers should:
- Consult with the employee by holding 2 or 3 individual consultation meetings
- Warn them of the risk of dismissal if they do not provide evidence of vaccination or exemption within specified timescales
- Give the employee opportunity to explain their circumstances and any reasons they should not be dismissed. This should be at a meeting. If a meeting is not possible then it can be held virtually or by telephone
- Allow the employee to be accompanied at any formal meetings
- Take and share notes of any formal meetings
- Explore alternatives to dismissal, such as redeployment.
- Decide the outcome and communicate this to the employee
- Provide a right of appeal
Dismissals without notice (summary dismissals) are wrongful unless they are in response to gross misconduct or repudiatory breach of contract by the employee. Misconduct or gross misconduct may apply in circumstances where the employee dishonestly provides false information of vaccination status. However, not being vaccinated or medically exempt will not in itself amount to misconduct.
Therefore, employees are entitled to receive notice of termination of their employment. The notice could be worked in full if this can be completed in advance of the date on which the regulations come into force. Also, employers are able to give longer notice than is provided for under the employment contract meaning that if an employee is only entitled to receive one or two weeks’ notice and notice is being given in advance of 1st April 2022, they may in fact receive six or seven weeks’ notice of termination of employment (for example). Alternatively, notice could be paid in lieu or an employee could be placed on garden leave if the employment contract permits this (for example, if notice extends beyond 1st April 2022 because the employee could not continue to come into work during their notice period given the statutory restriction).
Where an employee demonstrates intent to get fully vaccinated or obtain evidence of medical exemption it may be appropriate for an employer to delay giving notice of termination.
In view of the requirement to provide full notice, employers may find it difficult to balance the need to give full notice with the desire for employment to terminate for unvaccinated and non-exempt employees on 1st April 2022.
Notice cannot be given and then unilaterally retracted unless both parties agree. Therefore, employers cannot give notice in time for the change in law and subsequently retract it if proof of vaccination or evidence of medical exemption is later provided. However, it is unlikely that an employee who provides proof of vaccination or evidence of medical exemption at a later date would not agree to notice being retracted. Of course the employer may not want to retract notice at that late stage, if it has made alternative arrangements to cover the work, and in those circumstances it could be fair to continue with the dismissal, but each case will need to be considered on its own facts.
An employer could consider redeploying an employee for the remainder of their notice, or require them to take any annual leave accrued during their notice period.
Should employers put in place a vaccination policy?
Employers should consider putting in place a vaccination policy, and this may include the following:
- Whether staff will be entitled to time of work for vaccination or to obtain medical exemption evidence, and whether this will be paid or unpaid
- The deadline by which staff should provide evidence of vaccination or exemption
- Arrangements for leave for staff experiencing side effects from vaccination
- How vaccination and exemption data will be processed
- How other policies will apply to staff who cannot comply with the requirement to provide evidence of vaccination or exemption
- How evidence of vaccination or exemption will be addressed for new recruits and agency staff
- Any equality issues that arise from compliance with the regulations.
Employers who would like to implement a vaccination policy should consider:
- Consulting with staff associations or unions before implementing any policy.
- How they intend to communicate with staff about the vaccination policy, including how they will use employees’ personal data
- Their data protection obligations in processing data and the compatibility of the vaccination policy with their legal responsibilities.
- How they can use the policy to reduce the risk of potential workplace conflict between vaccinated and unvaccinated staff.
- In what circumstances they need to review the policy, for example, when private vaccination becomes possible.
Next steps for employers?
Employers should consider writing to all staff (including any employees who might be off on long term sick/on maternity/paternity leave etc.) to inform them about the regulations that are expected to come into force (subject to Parliamentary approval) and the impact of the regulations. Employers would be advised to inform staff as soon as possible of the following:
- The regulations and the timeline for implementation;
- Who will need to be vaccinated;
- Who is exempt;
- How employers will check is someone is vaccinated;
- How a worker should prove that they are vaccinated or exempt;
- How the employer will use, store and delete vaccination data, in line with the UK GDPR;
- How staff can book a vaccination, if they are not yet vaccinated;
- The employer’s policy for time off work relating to being vaccinated, including sick leave where an individual suffers side effects;
- The options for staff who are not able to deliver CQC regulated activities in patient facing roles; and
- How staff can ask questions or raise an issue if they have any concerns