Legislation passed extending compulsory vaccination to all CQC regulated activities

The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2021 were made on 6 January and came into force on 7 January 2022.  The regulations only apply to England.

They introduce a requirement, in all organisations carrying out CQC regulated activities (other than care homes, where rules are already in force), that from 1 April 2022 those who are employed or otherwise engaged for the purposes of the provision of that regulated activity are fully vaccinated against COVID-19, unless exempt.

This will apply in any setting where the regulated activity is carried out including hospitals, GP practices, dentists, community services and private homes where care is delivered in a person’s home. As with the care home vaccination rules, compliance and enforcement will be the responsibility of CQC.

The phrase ‘otherwise engaged’ should be given its plain, ordinary meaning. This means that it will include those who are deployed for the provision of the regulated activity even if they are not directly employed. This would include individuals who may be working under a contract for services, students and volunteers.

A key date for employers will be 3 February – the last date the first dose of the vaccination can be received to ensure the second dose can be administered by the 1 April 2022.

The Regulations make difficult reading but there are substantial notes in the Explanatory Memorandum which accompanies them. Our HR experts have summarised the key points below. It is worth noting that some of the provisions also affect care homes, most importantly the rules relating to new starters.

Purpose of the regulations

Compulsory vaccination rules are already in force for CQC-regulated care homes which place an obligation on the registered person to only permit access to the care home to those who are fully vaccinated or medically exempt, subject to several exceptions.

These regulations provide that from 1 April, the registered person responsible for any other CQC regulated activity can only ‘employ or otherwise engage’ a person for the purpose of delivery of that regulated activity if they provide evidence that either:

  1. they have been vaccinated with a complete course of an authorised vaccine against COVID-19 or,
  2. if vaccinated with an unauthorised vaccine, they are also, within a specified time period, vaccinated with a single dose of an authorised vaccine or
  3. they are medically exempt from COVID vaccination

In terms of understanding the impact on workers, it is helpful to consider them in three groups, namely:

  • those employed or otherwise engaged before the regulations were made on 6 January 2022
  • those employed or otherwise engaged between 6 January and 31 March 2022 (the grace period) and
  • those employed or otherwise engaged from 1 April 2022

Employed or otherwise engaged before 6 January

Where an individual was employed, or otherwise engaged, by the registered person by the date the regulations were made (6 Jan), from 1 April the registered person will only be able to continue employing or otherwise engaging them if:

  • they have been vaccinated with a complete course (two vaccinations) of an authorised COVID vaccine, or
  • if vaccinated with an unauthorised vaccine, they have received a top-up dose if required (this is determined by a table specifying requirements which is attached in Schedule 4A of the Regulations)

Employed or otherwise engaged between 6 January and 31 March (the grace period)

Where the individual was employed, or otherwise engaged, by the registered person during the ‘grace period’ between 6 January and 31 March, from 1 April the registered person can only continue to employ or otherwise engage them if:

  • they have been vaccinated with a complete course of an authorised vaccine, or
  • they have had a first dose of an authorised vaccine. However, this is for a limited period of 10 weeks from the date of their first vaccination. After that 10-week period ends, they are not permitted to continue to deploy them unless they have had their second vaccination.

If an individual is vaccinated with an unauthorised vaccine, and more than 10 weeks have passed since their first vaccination, the registered person would not be able to deploy them from 1 April until they receive a top-up dose, if required (as set out in schedule 4A).

Employed or otherwise engaged from 1 April

Where they are employed, or otherwise engaged, from 1 April, the registered person must be satisfied that either:

  • they have been vaccinated with a complete course of an authorised vaccine, or
  • they have had one dose of an authorised vaccine provided their employment or engagement starts at least 21 days after that vaccination was given

If the individual has only had a single authorised vaccine dose, they must have their second jab of an authorised vaccine within 10 weeks of receiving their first dose.

Where someone has been vaccinated with an unauthorised vaccine and more than 10 weeks have passed since their last vaccination, the registered person would not be able to employ or otherwise engage them until they have received a top-up dose (if required as set out in schedule 4A).

Meaning of ‘for the purpose of a regulated activity'

There is some ambiguity around the wording ‘employ or otherwise engage B for the purposes of the provision of that regulated activity’.

Guidance published for NHS Trusts at the end of last year provided some useful examples of how this would be interpreted in their Vaccination as a Condition of Deployment (VCOD) for Healthcare Workers guide.

Exemptions

The following exemptions apply:

Where the individual:

  1. does not have direct, face-to-face contact with service users
  2. is under the age of 18
  3. is medically exempt from vaccination
  4. is a participant in a clinical trial
  5. is engaged in the provision of the regulated activity as part of a shared lives agreement

Meaning of ‘direct, face-to-face contact’

This phrase should also be given its ordinary meaning. The guidance issued to NHS Trusts at the end of last year made it clear that this includes individuals working in non-clinical ancillary roles who enter areas which are used for the provision of CQC-regulated activities as part of their role and who ‘may have social contact with patients, but not directly involved in patient care (e.g. receptionists, ward clerks, porters, and cleaners), regardless of contracted hours or working arrangements’.

Medical exemption

Although there is a reference to medical exemption, the regulations do not expand upon this. However, the accompanying notes reference the existing scheme for demonstrating vaccination exemption status.

The guidance issued to NHS Trusts points out that the domestic NHS COVID Pass looks and works in the same way for people with clinical exemptions as it does for people who are fully vaccinated and therefore workers should produce their confirmation letter stating that they have been granted exemption status.

The guidance advises managers to take steps to ensure the Health & Safety of both the individual, other workers, patients and visitors by updating existing risk assessments to ascertain the potential risk of transmission caused by unvaccinated (but exempt) workers and putting in place other measures and reasonable adjustments to help reduce the risk.

It suggests that this may include ‘reviewing current personal protective equipment (PPE) use, regular lateral flow testing, remote working, sufficiently ventilated workplaces, cleaning regimes and hand hygiene etc’. It’s likely that this will be echoed in the advice to employers in the social care sector when this is published.

In terms of pregnancy, the accompanying notes state that whilst vaccines are safe for most pregnant people, and there is no evidence that COVID vaccines have any effect on fertility or chances of becoming pregnant, it’s recognised that sometimes vaccination may not be appropriate during pregnancy. It goes on to say that the current exemption scheme already provides short-term exemptions for those with short-term medical conditions, and this is an option some pregnant people may choose to take (it also refers to the fact that this exemption expires 16 weeks postpartum).

How do the Regulations change the position for care homes?

The regulations amend the current requirements for compulsory vaccination in care homes by introducing the same rules for new starters. As the grace period for care homes has already passed and vaccination requirements are now in force, the rules regarding recruitment of new starters apply immediately in the care home sector. This means that registered persons can deploy a worker in a care home 21 days after their first dose of an authorised vaccine. However, it would only be acceptable for them to work with a single dose for a period of 10 weeks from the date of their first vaccination and then they could not continue to deploy them until they received their second vaccination.

This change has been introduced to help relieve the staffing crisis in social care by cutting the time for people to start work in care homes after having their first vaccination from eight weeks (assuming they have had their second vaccination) to three weeks. However, it will mean that timescales will have to be managed very tightly by the care business. Employers should also be mindful that although there is a 10-week grace period in which to have the second jab, there should be at least eight weeks between vaccination doses and adults are advised to wait a minimum of four weeks after receiving a positive COVID test result before having a vaccination.

The regulations also confirm that those taking part in a COVID trial are exempt from care home vaccination requirements and clarify the position in respect of those workers who have been vaccinated overseas (this is likely to become a more common issue given that it was announced just before Christmas that care workers are to be added to the Shortage Occupation list as a temporary measure).

What is a complete course?

A complete course remains two vaccinations as the government rejected the idea of expanding the requirement to booster jabs (although they are keeping this under review in respect of winter 2022/23).

Impact for care providers

Those who have not previously fallen into scope of the care home rules will now have to follow the process of making employees aware of the requirements, gathering vaccination status information and embarking upon the formal process to deal with cases where people are unvaccinated, do not wish to be vaccinated and are not exempt.

The Department of Health and Social Care is due to publish detailed guidance to support the adult care sector very shortly and we’ll send out a further update as soon as this is available.

How Citation can help

If you’ve got questions or concerns about how these regulations will affect your CQC-regulated business, don’t hesitate to get in touch with our HR & Employment Law experts on our 24/7 advice line on 0345 844 4848.

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