Extending the mandatory vaccination requirement – what we've learnt so far
In record speedy time, the government has responded to the consultation on 'Making vaccination a condition of deployment in the health and wider social care sector'.
As anticipated, the mandatory vaccination requirement is being extended to all providers of CQC-related activities, so that only individuals who have been vaccinated against Covid-19 will be able to be deployed to roles where they interact with patients and people supported by care providers. Controversially this includes the NHS.
It's anticipated that the draft regulations will come into force from 1 April. They provide that workers providing services regulated by CQC who have face-to-face contact with vulnerable people will be required to provide evidence that they have been vaccinated.
Who is now caught?
This will include front-line workers, as well as non-clinical workers employed by the CQC registered provider who nevertheless may have direct, face-to-face contact with the people they support or patients, such as "receptionists, ward clerks, porters and cleaners." It will apply to agency workers, volunteers or trainees. The test is whether the worker has direct, face-to-face contact with the vulnerable person.
This will have a considerable impact, not only on the NHS, but also on organisations offering domiciliary care and supported housing for people with additional care needs and retirement community operators. All organisations providing care services registered by CQC will need to start preparing for the roll out.
Where the CQC registered care provider also provides other services for those who require care it will capture the provision of the other services where they are provided as part of a care package, as long as those workers have social contact with vulnerable people. Ironically however it won't capture non care services if they are subcontracted to another employer which does not provide CQC registered care, such as cleaning or the provision of meals.
The existing mandatory vaccination requirement for CQC-registered care homes extends to any professionals visiting the care home, such as healthcare workers, tradespeople, hairdressers and beauticians, and CQC inspectors. However, the government has decided that the same rules will not apply in relation to CQC-regulated activities carried on in residential or inpatient settings. It states that it will keep this decision under review.
Providing evidence of vaccination status
Any individual caught by the new mandatory vaccination requirement will have to provide evidence that they have been vaccinated with a complete course of doses of an authorised vaccine, or that they should not be vaccinated for clinical reasons. It is anticipated that employers will be able to rely on an app by 1 April 2022.
Who is exempt from the requirement?
Of those that are caught, the mandatory requirement will not apply to individuals those who are clinically exempt from Covid-19 vaccination, under the age of 18, and those who have taken part, or are currently taking part, in a clinical trial for a Covid-19 vaccine. By the time these regulations are in force there will be an app that will record medical exemptions, which will simplify the current position dramatically.
The effect on staffing
There will definitely be a number of staff who will still be resistant to having the vaccine, and may find jobs outside care more attractive than having a vaccine. This is an added pressure on the already stretched recruitment crisis in health and social care.
For this reason the government has proposed a different provision in the proposed regulations to the current regime. Those recruited by a care provider after the Regulations are made (this is currently anticipated to be 7 January) will have to provide evidence that they have been vaccinated with one dose of an authorised vaccine and will have 10 weeks from the date of their first vaccine to get fully vaccinated. In the case of some of these recruits, depending on when they are employed, this means that they will not have to have had two vaccine doses by 1 April.
New recruits employed after 1 April will have to show that at least one vaccine has been given 21 days before the date their employment begins and will then have 10 weeks from the date of their first vaccine to have the second. Similarly, those who have not had a complete dosage of a vaccine authorised in the UK, will have 10 weeks to provide evidence that they have been vaccinated with the first dose of a UK-authorised vaccine, or with one of the approved vaccines listed in the Regulations with the approved number of doses. Current unvaccinated staff may object to the flexibility given to new recruits.
So what have we learnt from care home vaccinations?
Our main message is that those implementing the new requirement don't have that much time to get organised. It is worth planning the process carefully and be prepared for the challenges.
- Employers must engage with employee representatives about this change and explain how you will roll out the new law and the reasons for it. We advise you do this now.
- The next step is to identify who is vaccinated and who is not. Providers should be asking for this information before Christmas as it takes time to compile.
- You should anticipate some objection to the requirement, in the form of grievances and whistleblowing complaints. Some employees have been represented by unions that are avowedly opposed to the new regulations and their objections take time to deal with. While you will be able to justify the mandatory vaccination requirement for those staff that are obliged to have it, you need to deal with such issues proportionately and we advise that you set out a process that can be followed, set out the reasons for the new law, and include the necessary changes to your data protection policies. We suggest a policy should cover all those matters easily.
- In view of the potential to lose staff over this issue, the best way to encourage employees to be vaccinated is to use existing peer experience and educate staff about the benefits of the vaccine and the need to protect the vulnerable.
- The aim will be to get as many staff on board with the mandatory requirement as possible so it is important to listen to any concerns raised and to actively encourage people to be vaccinated for example, by offering them paid time off work to do so. Concerns have been raised about the sickness caused by the vaccine, so consider paying sick pay to those who are unable to work as a result of the vaccine.
- If staff refuse to have the vaccination, you may need to consider termination of their employment. In order to do so fairly you will need to have consulted with them in advance of giving notice and considered staff for alternative employment.
- Bear in mind that if you are going to give notice to staff to terminate their employment you will need to give them full notice. If employees have 12 years' service, they will be entitled to notice at latest on 7 January 2022 or you may need to pay in lieu of notice.
Potential areas for consideration
Will it be possible to dismiss an employee who refuses to have the vaccine? The answer is yes, but the matter isn't entirely straightforward. If regulations are introduced then the new law would give an employer a fair reason for the dismissal, but the employee concerned could still bring a claim for unfair dismissal. In order to defend such a claim the employer would have to be able to show that they had explained why the vaccine was needed, and that a fair procedure was used to dismiss the employee.
We've also seen numerous grievances and whistleblowing complaints from people employed in CQC-registered elder care homes attempting to challenge mandatory vaccinations by arguing that they are discriminatory, so make sure that these complaints are taken seriously and dealt with via a fair process.
Many care services run with the financial year. An early assessment of the availability of staffing from 1 April 2022 means that it is sensible to consider whether contracts can be delivered in 2022/2023. We have seen many clients reassess their contracts as a result of the first roll out of the mandatory vaccinations. Alternatively, care providers will want to consider configuration of those services under pressure.
We've been advising some care providers affected by the mandatory vaccination regime in elder care homes who have rolled out vaccinations for all their staff (whether or not required). This does require some further preparation as you would be making changes to terms and conditions of affected employees.
We have template policies and letters on each stage of this process. We've been advising employers on the implementation of mandatory vaccinations almost daily over the last months. Please do give us a call if we can help.