Compulsory vaccination in the NHS and wider social care announced

On Tuesday 9 November, the Health Secretary Sajid Javid announced in the Commons that the government plans to implement rules requiring compulsory vaccination in the NHS and wider social care sectors. Later that afternoon the government published their 72-page consultation response which provided further details of how the new rules will work.

Our HR & Employment Law experts have summarised the key points from these announcements.

When will the rules come into force?

The government has said that, subject to the passing of the regulations, the new rules will not come into force until 1 April 2022.

Who will the rules apply to?

The rules will apply to providers of CQC regulated activities (whether publicly or privately funded) such as hospitals, GP practices, dental practices and private homes in the case of domiciliary care. It will require ‘workers who have direct, face-to-face contact with service users’ to provide evidence that they have been vaccinated, subject to limited exceptions. It will cover all front-line workers including not only those providing clinical care but also those ‘not directly involved in patient care but who nevertheless may have direct, face-to-face contact with patients, such as receptionists, ward clerks, porters and cleaners.

The rules will apply regardless of whether the individual is an employee, agency worker, volunteer or trainee, etc.

Who is exempt?

  • those under the age of 18
  • those who are clinically exempt from COVID-19 vaccination
  • those who have taken part or are currently taking part in a clinical trial for a COVID-19 vaccine
  • those who do not have direct, face to face contact with a service user, ‘for example, those providing care remotely, such as through triage or telephone consultations or managerial staff working in sites apart from patient areas’
  • those providing care as part of a shared lives scheme

What is a shared lives caring arrangement?

Shared lives schemes support adults with learning disabilities, mental health issues or other needs which make it harder for them to live on their own. Under the scheme, a carer is matched with a service user and either lives with that carer or become regular daytime visitors (or mixing daytime and overnight visits).

How will the rules come into force?

The government response includes proposed amendments to Criterion 10 of the Code of Practice on the Prevention and Control of Infections. This includes reference to the care home vaccination regulations and the regulations which will apply to wider social care and the NHS - the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No.2) Regulations 2021.

Rules regarding new starters

  1. Where the individual was first employed or engaged by the business before the date the regulations were made (this date is not known yet).

 In order to be engaged in the regulated activity, the business has to ensure that the individual has been: 

  • vaccinated with the complete course of doses of an authorised vaccine; or
  • is medically exempt or
  • where they have been “otherwise vaccinated against coronavirus” (i.e. vaccinated overseas with a vaccine which is not authorised in the UK) they have a 10 week period of grace from the date of their vaccination but after that they are only able to work where they can show that they have been vaccinated with one dose of an authorised vaccine in addition to being “otherwise vaccinated against coronavirus”; or they have been vaccinated with a vaccine listed in the table attached to the Code for the requisite number of doses shown on the table.
  1. Where the individual was first employed or engaged by the business during the ‘period of grace’ (between the regulations being passed and them coming into force – a period which will be at least 12 weeks)

 The same conditions as in (1) above but in addition the employer can allow an individual to work for a period of up to 10 weeks where they have only received one dose of an authorised vaccine. However, after the 10-week period, they could only work if they can meet one of the conditions above.

  1. Where the individual was first employed or engaged by the business after the date the regulations come into force

The employer must be satisfied that the individual has met one of the conditions as in (1) above but in addition, they can allow an individual to work where they have been vaccinated with just one dose of an authorised vaccine at least 21 days before the first day of deployment. They will then have a period of 10 weeks from the date of that first dose to be fully vaccinated (or prove medical exemption).

Moving from a role that falls outside the scope of the rules to a role that falls within the vaccination requirements

If the individual moves from a role that did not have direct contact with service users to one where they will have such contact, for the purposes of the rules they will be treated as if they were engaged or employed from the date that they begin in the new role (in which case the new starter rules would apply).

Do the requirements include flu and booster vaccinations?

No. Given the flu season generally runs between October and March, and as the regulations are not coming into force until April, the government has decided not to include flu vaccination in the compulsory requirements. However, they will keep this under review following the experience of this winter and may reconsider the position ahead of winter 2022/23.

The government has also excluded booster vaccinations at the moment, but this will also be reviewed ahead of winter 2022/23.

Medical exemption

The consultation response says further guidance will be issued on medical exemption, together with general advice on implementation. This will presumably refer to the medical exemption scheme which is now up and running and the response does reference the time-limited exemption which can be used by pregnant workers (which expires 16 weeks post-partum).

How Citation can help

We’re expecting to see draft regulations and implementation guidance from the government coming through soon. In the meantime, our experts have put together a template letter that can be used to help raise awareness of these forthcoming changes within your business. Just click here to access the template in Atlas. Keep an eye on your inbox, where our HR & Employment Law experts will summarise everything you need to know.

And remember, you can contact our experts 24/7 on our advice line on 0345 844 4848 if you need advice and guidance on how these new regulations will affect your business in the future.

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