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U-turn on mandatory vaccination in health and social care

Read our first report on this matter

The Secretary of State confirmed that it intends to revoke the regulations mandating vaccination in CQC regulated care home settings.

As we previously reported, in late 2021 the Government brought legislation into force stating that, from 11 November 2021, all staff working in CQC regulated care homes in England must be vaccinated against COVID-19, as a condition of deployment.

The Government subsequently consulted on extending this requirement across the whole of the health and social care sector in England. As a result, it brought into force regulations stating that from 1 April 2022, providers of CQC-regulated activities must ensure that they only deploy those who have been vaccinated against COVID-19 to roles requiring interaction with patients and service users.

However, on 31 January, the Secretary of State for Health and Social Care made a statement to the House of Commons, announcing that the Government will launch a consultation on ending vaccination as a statutory condition of deployment in health and social care settings. Following consultation, and subject to Parliamentary approval, the Government will then revoke the regulations. However, the Secretary of State made clear that that ‘the Government have made their decision on this’ and that the short 2-week consultation period, which is a legal requirement, is unlikely to change the position.

The Secretary of State confirmed that, as well as halting the implementation of mandatory vaccination across the NHS and the broader health and social care sector, it also intends to revoke the regulations mandating vaccination in CQC regulated care home settings. He stated that this will not affect dismissals of care home staff that have already taken place, as “that policy was right at the time” but suggested that these staff might choose to reapply for care home work once the restrictions are lifted.

We don’t yet know when the 2-week consultation period will commence, or the exact date on which either set of Regulations will be revoked.

The Secretary of State said that this decision was taken on the basis of two new factors arising from fresh scientific advice. The first factor is that the population as a whole is now better protected against hospitalisation from COVID-19 due increased infection and vaccination rates. The second factor is that the dominant variant, Omicron, is less severe than previous variants. The Secretary of State concluded from this that while he believes vaccination remains our best line of defence against COVID-19, he no longer believes it is proportionate to require vaccination as a condition of deployment through statute.
The decision comes very shortly before the 3 February deadline for NHS staff to have their first dose of the vaccine, in order to have had their second dose in time before 1 April. Guidance on implementation of the regulations had previously required that after 3 February, NHS employers begin the formal process of meeting with unvaccinated staff to discuss their potential dismissal.

In a reversal of that guidance, a letter sent to NHS employers by NHSEI following the announcement, requested that employers do not serve notice of termination to employees affected by the VCOD regulations. A press release has also been issued by the DHSC confirming that consultation will take place.

The Secretary of State also announced some further steps that he is taking to continue to promote the uptake of the vaccine among health and social care professionals. He has:

  • written to professional regulators operating across healthcare to ask them to urgently review current guidance to registrants on vaccinations, including COVID-19, to emphasise their professional responsibilities in this area.
  • asked the NHS to review its policies on the hiring of new staff and the deployment of existing staff, taking into account their vaccination status.
  • asked his officials to consult on updating the DHSC’s Code of Practice which applies to all CQC registered providers of all healthcare and social care in England. They will consult on strengthening requirements in relation to COVID-19 including reflecting the latest advice on infection prevention control.

However, the announcement, letter and press release do not address what the Government’s expectations are in relation to reviewing policies on recruitment and deployment of unvaccinated staff. It is therefore presumed that further communications will be issued by the DHSC on these matters.

For any further information or advice please contact Matt Smith, Associate.

COVID-19: Vaccination to be mandatory across health and social care sector from 1 April 2022

This insight was first published 10 November 2021

As you will no doubt be aware, new legislation has recently come into force stating that, from 11 November 2021, all staff working in CQC regulated care homes must be vaccinated against COVID-19, as a condition of deployment.

In a previous update we outlined the Government’s proposal to extend this requirement across the whole health and social care sector, to include settings such as hospitals and GP practices. A 6-week period of consultation on this issue closed on 22 October 2021, and the response to that consultation was published on 9 November 2021.

In its response, the Government confirmed its intention to proceed with the proposed extension of the rules.     

From 1 April 2022, providers of CQC-regulated activities must ensure that they only deploy those who have been vaccinated against COVID-19, to roles requiring interaction with patients and service users.

Which staff are in scope?

The new regulations will apply to workers who have direct face to face contact with service users. This will include front-line workers, as well as non-clinical workers not involved in patient care who nevertheless may have direct face to face contact with patients, such as receptionists, ward clerks, porters and cleaners.

In addition to directly employed staff, the requirement will also apply where a regulated activity is delivered through agency workers, volunteers or trainees, or is contracted to another supplier.

Those who do not have direct face to face contact with a service user, will not be captured by the new rules.  Examples include those providing care remotely, such as through triage or telephone consultations, or managerial staff working in sites set apart from patient areas.

In alignment with the care home rules, staff will not be required to have the vaccination if they are able to evidence that they are clinically exempt. Similarly, those under the age of 18 are not required to evidence vaccination.

Friends and family who provide essential care will not be subject to the vaccination requirements.

Will staff need to complete a full course of the vaccination to be lawfully deployed?

It appears, from the consultation document, that healthcare employers will be permitted to deploy staff who have had a single dose of an authorised vaccine, provided that a full course of vaccination is completed within 10 weeks of that first dose.

This would differ from the care home regulations (which require staff to evidence a full course of vaccination before they can enter the setting) and is intended to minimise any recruitment or retention challenges the vaccination requirement may cause in the broader healthcare context. We will need to see draft legislation to understand exactly how this will work.

Which workplaces/settings are in scope?

The requirement will apply to workers in most health and social care settings including hospitals, GP practices, and situations where care is delivered in a person’s home. The requirements will apply to CQC-regulated activities, whether they are publicly or privately funded.

One notable exception is any worker providing care as part of a ‘shared lives’ agreement, where the care recipient lives in the home of the carer. The consultation response expresses the view that it would not be appropriate to risk disrupting these long-standing arrangements, which are often more akin to extended family relationships than a traditional relationship between carer and service user.

Some other CQC-regulated activities carried on in residential or inpatient settings (for example, residential recovery services for drugs and alcohol, hospices, and registered supported living services) will also fall outside the vaccination requirement. The Government states that it considered applying the ‘care home approach’ to these settings (i.e. that all those entering the setting must be vaccinated) but decided against this. The rationale for this decision is not entirely clear, but the consultation document confirms that it will be subject to ongoing review.

Why won’t the new rules come into force until Spring?

Several respondents to the Government consultation were concerned about the potential operational impact of introducing the mandatory vaccination requirement over the winter pressure period. Many expressed fears around loss of staff at a time when services are already stretched. To mitigate this, the Government has deferred the introduction of the new requirement until Spring 2022 and will allow at least a 12 week ‘grace period’ between any new legislation being introduced and the vaccination requirement ‘kicking in’ on 1 April 2022.

Avoiding seasonal pressure is also a factor behind the Government’s decision to not to introduce a vaccination requirement for flu at this time. However, the consultation states that this will be kept under review following this winter, and ahead of winter 2022/23.

What do we need to do now?

The consultation document sets out lots of useful information about the Government’s intention to legislate, and the likely scope of that legislation. However, we will need to wait until draft legislation is published to scrutinise the finer details.

Although the ‘go-live’ date of 1 April 2022 is still some way off, it is never too early to consider your communications strategy. Patient-facing staff should be alerted to the impending change at the earliest opportunity, to allow you to gauge likely levels of engagement in your organisation.

The consultation response document suggests that vaccine uptake in the broader health and social care sector is generally high. For example, over 93% of NHS workers have received at least one vaccination dose, although take-up rates differ between trusts and between job roles.

However, even if the vaccination requirement is generally well received, the NHS and other CQC-regulated health and social care settings undoubtedly face an extremely challenging logistical and administrative task to prepare for implementation.

Read the consultation response in full.

If you require any advice or support with any aspect of your organisation’s strategy please do not hesitate to contact one of our employment law solicitors.