24/7 Menu 11 November 2021 Mandatory COVID-19 vaccinations for frontline NHS staff Following in the footsteps of mandatory vaccination for staff in care homes, the Department for Health and Social Care launched a consultation in September 2021 to consider whether COVID-19 vaccinations should be compulsory for frontline NHS and healthcare workers. Although a majority of respondents to the consultation did not support the proposal, the government have nonetheless elected to introduce regulations mandating that health and care sector employees can only be deployed as frontline staff if they are vaccinated against COVID-19. The Health Secretary has stressed that this decision has not been made with a view to excluding or shaming those who have not yet chosen to have the vaccine. Instead, the Health Secretary cited that the implementation of these regulations is made with the overarching goal of protecting patients and staff and, in turn, that this hopefully eases the pressures on the NHS. The responses to the consultation raised concerns that staff would leave their jobs as a result of the policy and that this would then impact upon workforce capacity. For a service that is already chronically understaffed, and that faces another tough winter period, the NHS and other health sector employers are understandably uneasy about losing employees over the new regulations. Particularly so, when there are close to 90,000 roles standing vacant across the NHS in England already. Concerningly for the NHS and health sector employers, the impact statement published by the government alongside the consultation response predicts that 73,000 NHS workers and 50,000 staff in the independent and domiciliary care sectors will not have fulfilled the conditions of deployment by 1 April 2022. The policy impact statement goes on to predict that the highest proportion of NHS staff will leave towards the end of the grace period, as this reflects what has happened in care homes, and admits that the loss of staff will put further pressure on NHS services in the spring. Other responses to the consultation detailed concerns that the measures may disproportionately impact those from ethnic minority backgrounds. Some workers may have religious or moral objections to the vaccine, and these may amount to protected religious or philosophical beliefs. This will be of further concern for employers in terms of potential claims of discrimination, should individuals choose not to have the vaccine by the April deadline. As COVID-19 continues to pose a real risk to those who are vulnerable in hospital, and as the vaccine is cited to reduce transmission, the logic behind the implementation of mandatory vaccines for staff is obvious when looked at from a patient safety perspective. From the employer perspective however, there is understandable unease about staffing levels across the health and care sector going forwards. FAQs What does this mean for the NHS and other health sector employers? As of 1 April 2022, COVID-19 vaccinations will become mandatory for frontline health and care staff. The government regulations will only allow providers of CQC-regulated activities to deploy individuals who have been vaccinated against COVID-19 to roles where they interact with patients and service users. It will be the responsibility of the CQC-registered person, either the service provider or registered manager, to ensure that they only deploy staff who have provided evidence that they have been vaccinated against COVID-19. In the case of those who may be exempt, the CQC-registered person must have seen evidence of the employees’ medical exemption before they can deliver care. Furthermore, the requirement will apply to CQC-regulated activities whether they are publicly or privately funded. Staff will need to receive a full course of COVID-19 vaccination in order to continue to be deployed. Which employees are subject to this requirement? Only workers who have direct, face-to-face contact with service users are subject to this requirement. This will include front-line workers; as well as non-clinical workers who are not directly involved in patient care but who nevertheless may have direct, face-to-face contact with patients e.g. receptionists, ward clerks, porters and cleaners. In addition, this will extend to GP practices, where care is delivered in a person’s home and where regulated activities are delivered through agency workers, volunteers or trainees, or contracted to another provider. What are the exemptions? Similarly to staff in care homes, the Health Secretary has outlined that there will be exceptions for those who are clinically exempt from COVID-19 vaccination, those who are under 18 and those who have taken part or are currently taking part in a clinical trial for a COVID-19 vaccine. In addition, those who do not have face-to-face contact with patients in their work will also be exempt. This will include those providing care remotely, such as through triage or telephone consultations, or managerial staff working in sites that are separate from patient areas. Staff will not be exempt from receiving the vaccine based on religious grounds. As outlined above, there is a risk that workers may have religious or moral objections to the vaccine which may amount to a protected or philosophical belief. In this instance, we recommend seeking advice on a case-by-case basis. What about new recruits? Those who are joining the workforce after 1 April 2022 will need to be vaccinated in order to be deployed by a CQC-registered person. The registered person must only deploy those who have had their first dose of vaccination, with a second dose within 10 weeks. In the case where employment offers have already been given out, employers should ascertain the vaccination status of these individuals. It may be appropriate that where an individual is not yet vaccinated, but they plan to be, to direct that as a condition of their offer of employment, they are to be vaccinated by a set date. What if an employee refuses to get the vaccine? The first point of call should be to consider the potential for redeployment of individuals who are not medically exempt and who do not intend to be vaccinated by the deadline. Failure to be vaccinated however, may be sufficient reason for dismissal on the grounds of contravention of a statutory enactment or as an SOSR dismissal. What should employers be doing now to prepare for this change? Although the deadline of 1 April 2022 seems a long way off, preparing for implementation will no doubt be a logistical and administrative challenge for the NHS and other health and care providers. We would recommend starting to undertake the following: Ensure that staff are aware of the need to be vaccinated and consider commencing a due diligence process to ascertain the vaccination status of all frontline staff. You should look to establish who is medically exempt and whether there is anyone who does not intend to be vaccinated and, if so, why not. Continue to monitor the status of employees that are intending to be vaccinated ahead of the deadline. In contrast to care homes, it looks as though staff can be deployed having only had their first dose of the vaccine (provided that the second is received within 10 weeks). However, we will need to see the draft legislation to confirm that this is the case. Consider what the plan is for staff members who are not medically exempt and do not intend to get their vaccine. Is redeployment feasible? If not their notice periods should be considered, as dismissal may need to be considered. Consider whether staffing levels will be affected on 1 April 2022 if you have a number of staff who will not have been vaccinated. Liaise with Recruitment and HR teams to put in place a plan to mitigate the risk of understaffing. If you have any queries about the implementation of mandatory vaccinations to your workforce, or the steps you can take to prepare for this change, please get in touch with your usual point of contact at Hill Dickinson or a member of our Health Employment team. 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