Compulsory COVID-19 vaccination in wider healthcare sector


15th November 2021

What are the proposed changes to the law around compulsory COVID-19 vaccinations in the wider healthcare sector? Following an announcement by the health secretary on 9 November 2021, "frontline" CQC-regulated health and social care staff in England, including NHS staff, will have to provide evidence that they have been fully vaccinated against COVID-19. Subject to Parliamentary approval, regulations will come into force on 1 April 2022 to provide the 103,000 unvaccinated workers time to get both doses of the COVID-19 vaccine.

This decision follows a consultation process which began in September 2021 and considered whether both the COVID-19 and flu jabs should be compulsory for frontline health and social care workers deployed in CQC regulated activities, including but not limited to the NHS in England.

Application

Similar to the position in CQC-registered care homes in England, the proposed regulations will require evidence of COVID-19 vaccines as a condition of deployment rather than mandating them as such. It will essentially be an extension of the existing statutory requirements for other health and care settings set out in the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations). We expect the amendment to those Regulations largely to follow those made in respect of CQC-registered care homes, and the Operational Guidance for care homes will also be a good starting point for guidance for health and social care employers in the meantime. Please see our article on vaccinations in care homes in England for further information.

However, the Government concluded that flu vaccines would not be included in the amendments to the 2014 Regulations, although it will keep this under review following this winter and ahead of winter 2022/23.

“Frontline” means those who have direct face–to-face contact with service users so can include non-clinical workers such as receptionists, porters and cleaners. It includes hospitals, GP practices and care in a person’s home (with the exception of Shared Lives carers’ arrangements where the carer lives in a person’s home), dentists, clinics, community services and mental health services. It includes CQC regulated activities whether publically or privately funded and agency workers, volunteers and trainees or those contracted to another provider. The scope of the regulations is much wider than NHS employers.

Clinical exemptions will be allowed, as for care homes.

With many health and social care staff recruited from overseas, there will be specific requirements for those vaccinated abroad, including, where necessary, a top-up vaccine with a UK authorised vaccine. The COVID-19 vaccination care home guidance for England will be aligned with this guidance.

The Consultation and Government Response sets out the importance of protecting people receiving care in all health and social care settings and protecting the valuable workforce. Despite 2.6 million health and social care workers taking up the COVID-19 vaccine (as of 31 October 2021) there is evidence that some areas of England are more protected than others. For example, NHS figures show that Dorset County hospital has the highest at 94.6%, while Barts Health NHS Trust has the lowest rate of fully vaccinated staff, at 79.7%.

The Scientific Advisory Group for Emergencies (SAGE) has advised vaccination as a tool in preventing the transmission of COVID-19 and flu in settings where vulnerable people receive care. The SAGE Social Care Working Group has made a strong case for a parity of approaches in vaccination between NHS inpatient settings and care homes, given the close and overlapping networks between residents, patients and staff.

Research by Public Health England indicates that the COVID-19 vaccination programme has directly prevented an estimated 24.1 million infections, over 261,500 hospitalisations, and 127,500 deaths.

Similar to the requirements for care homes in England, booster vaccines will not be required in addition to the full dose of a vaccine, but the Government encourages uptake and will keep it under review for 2022/23.

Notably, however, the support for flu vaccines from those responding to the Consultation was much lower than for COVID-19 vaccines. Taking that, the different efficacy of the flu vaccine and the fact that the flu vaccination programme will largely be over by March, the Government decided not to include flu vaccines in the amendments to the 2014 Regulations this winter.

Employment related issues

Issues with current workforce

Although the responses to the consultation indicated support for the vaccination proposal there were also concerns that some staff may choose to leave their jobs, or move from the frontline, over the policy. Chris Hopson, chief executive of NHS Providers which represents England’s NHS trusts stated that the possibility of losing staff was a “real problem” as the NHS runs on fine margins and rely heavily on staff working extra shifts.

Unison head of health Sara Gorton said she feared the move might knock staff morale further and prompt workers to leave or face losing their jobs. She also noted that the Government should perhaps consider alternatives in the first instance, such as daily testing to avoid an “unprecedented staffing crisis”.

The Consultation asked managers of healthcare or social care services and organisations providing health or care services how they anticipate they would respond to unvaccinated staff who fall within the requirement to be vaccinated. Two in five (41%) said that they would cease employment of unvaccinated staff. Almost three in ten (29%) said that they would redeploy unvaccinated staff. Both options would result in a shortage of staff and the opportunities to redeploy staff are likely to be limited. Until further details are produced, the Operational Guidance updated on 19 October for CQC-regulated care homes in England provides some helpful guidance to employers on the Employment law issues involved and pitfalls to be aware of. Employers in the sector will need to be extremely careful and not apply any blanket approaches.

It is also important for employers outside this sector, and the scope of the proposed regulations, to understand that mandatory vaccinations for workers remains a very risky policy unless there are compelling reasons.

Recruitment

Under section 60 of the Equality Act 2010, employers are prohibited from asking a job applicant health-related questions before making a job offer unless one of a limited number of exceptions apply. When publishing job advertisements, organisations in the health and social care sector should now make applicants aware of the requirement to be vaccinated but they must also clearly state that those who are medically exempt from the requirement for vaccination are still able to apply for roles as alternative arrangements may be made.

It would be best practice to notify prospective staff of the requirement at the start of the application process and undertake appropriate checks, during the recruitment process, to ensure the individual is eligible to work. It will only be possible for a newly appointed member of staff to start working in this sector once they have provided evidence of their vaccination status or a medical exemption. However, unlike the regulations for care homes in England, this evidence may comprise only having had one dose of the vaccine, provided the individual does not continue to be employed after 10 weeks without completing the course of the vaccine. This also applies to those moved into a regulated activity after the proposed regulations come into force.

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