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What is the impact of mandatory vaccinations on the private healthcare sector? Our Legal expert, Jennifer Mansoor, explains.

UPDATE: It has now been announced that mandatory vaccination will end for health and care sector in England on 15 March 2022.

On 31 January 2022 Government announced a change in policy. It stated it had decided it will

• not now mandate the Covid-19 vaccination of all frontline health and social care workers in England which would have required two vaccine doses by 31 March spaced eight weeks apart.  
• cancel the like and already existing requirement of all adult care staff and volunteers in England. 
• launch a two week consultation on ending Vaccination as a Condition of Deployment in health and all social care settings; and 
• subject to the responses to the consultation – and a Parliamentary vote in support –revoke both sets of the regulations covering each of (1) health and social care and (2) care homes.
• undertake no more enforcement of existing regulations which are planned to change

It was acknowledged that in December 2021 the weight of clinical evidence had been in favour of Vaccination as a Condition of Deployment which then outweighed the risks to the workforce.

The basis for the change is stated, as 31 January 2022, to be that 

1. the population as a whole is now better protected against hospitalisation from COVID-19 
2. the dominant variant – Omicron – is intrinsically less severe.
3. the risk of presentation to emergency care or hospital admission with Omicron is approximately half of that for Delta.

On 9 February 2022 Government consultation began and on 1 March 2022, it published its response to the consultation stating 90 per cent of the 90,000 responses supported the revocation of mandatory vaccination in the health and social care sectors.

Government has announced it will introduce revocation regulations effective on 15 March 2022.

It remains the view of Government that everyone working in health and social care has a professional duty to be vaccinated against COVID-19. Therefore, on 31 January the Secretary of State for Health and Social Care also stated he had: 

1. written to professional regulators operating across health to ask them to ‘urgently review current guidance to registrants on vaccinations, including COVID-19 to emphasise their professional responsibilities in this area’.
2. asked the NHS to review its policies on the hiring of new staff and the deployment of existing staff, taking into account their vaccination status.
3. asked officials to consult on updating the department’s Code of Practice on the Prevention and Control of Infections to strengthen requirements in relation to COVID-19 which applies to all CQC registered providers of all healthcare and social care in England.

Mandatory coronavirus vaccination in the care home sector in England

Prior to the announced and imminent change in the law effective from 15 March 2022 (see above),

1. All adult care home staff and volunteers in England were required to be fully vaccinated against coronavirus, excluding those medically exempt or taking part in a clinical trial. This included front line care staff and tradespeople, hairdressers, beauticians and CQC inspectors visiting the care home. However, this requirement did not extend to friends and relatives visiting a resident or to those entering to assist with an emergency or carrying out urgent maintenance work.
2. It was unlawful for CQC regulated care homes in England to employ staff working in the care home who were not vaccinated against coronavirus unless they were medically exempt or taking part in a clinical trial. However, individuals who had not previously been employed or engaged in the care home could be deployed if they had received a single dose at least 21 days before starting work but they must obtain their second dose within 10 weeks of the first.

Introduction of mandatory coronavirus vaccination for frontline health and social care workers in England

Prior to the announced planned cancellation of the regulations effective on 15 March 2022 (see above):

Vaccination against coronavirus was to become mandatory on 1 April 2022 for health and social care workers in England who have face-to-face contact with patients unless they are medically exempt or taking part in a clinical trial. This requirement was to apply to doctors, nurses and dentists who are directly involved in patient care, and to ancillary staff such as porters, receptionists and cleaners who may have contact with patients in the course of their work.

From 1 April 2022, it was to  be unlawful for CQC regulated providers in health and social care in England to employ unvaccinated staff who have direct patient contact except for those individuals who are medically exempt or are taking part in a clinical trial. Although, as with care homes, new hires could be deployed if they have received a single dose at least 21 days before starting work although they must receive their second dose with 10 weeks of their first.

To comply with the new regulations, unvaccinated staff would have needed to have had their first dose of the vaccine by 3 February 2022 - since the current advice is that vaccines should be given 8 weeks apart.

Medical exemptions

Prior to the announced planned cancellation of the regulations effective on 15 March 2022 (see above):

The Government had announced that a MATB1 stands as a medical exemption, for pregnant workers who prefer not to be vaccinated, until 16 weeks following the birth of their child. Whilst the coronavirus vaccine has been declared safe for pregnant women, and they have been encouraged to take up the vaccine, the Government is allowing pregnant women to choose to delay their vaccination until after birth. As pregnant women do not obtain a MATB1 until later in their pregnancy, presumably those unvaccinated who prefer not to take the vaccine during their pregnancy can apply for a medical exemption on pregnancy grounds to cover their position until the MATB1 is available.

Health and care sector employers should have considered informing any pregnant staff of the MATB1 position. Were any medical exemption to be granted to a pregnant worker (pre receipt of their MATB1), any action by an employer to treat an employee with a pregnancy-related medical exemption less favourably than a worker with a non-pregnancy-related medical exemption, will be unlawful and could amount to discrimination.

What should employers in the health and care sector be doing now?

Pending the announced planned cancellation of the regulations effective on 15 March 2022 (see above):

In preparation for the expected vaccination deadline of 1 April 2022, CQC regulated providers in health and social care in England, including the NHS, were running a communication process with their staff to ascertain their vaccination status and encourage those that have not been vaccinated to do so if they are not medically exempt or taking part in a clinical trial. 

If staff refused to be vaccinated, and they did not qualify for an exemption, employers would have  needed to consider redeployment and/or explore if there is a way the worker’s role can be redesigned to remove patient contact or as a last resort termination of employment for those workers who refuse to be vaccinated and for whom redeployment/role redesign is not an option. This could have involved a risk assessment of which parts of the organisation could be most affected, how they might then redeploy and any other terms’ impact such as on hours or remuneration. Remote working without access to frontline patient care or to patients might also be a consideration for some workers. 

Bearing in mind the Government’s view that everyone working in health and social care has a professional duty to be vaccinated against COVID-19 and its impact on recruitment:

• Health and social care employers who were to have their own vaccination requirement may still wish to consider what they should include that in their recruitment policies and job adverts, update their candidate privacy notices and properly understand any medical exemptions during the recruitment process.
• CQC regulated care homes in England may also need to consider updating their agreements with their service providers to include the vaccination requirement for individuals visiting the care homes for work related purposes.
• Finally, employers in the health and care sectors in England consider implementing robust policies which clearly outline any vaccination requirement for staff and, in relation to care homes, also for any professionals visiting the care home and whether entry will be permitted without evidence of vaccination or a medical exemption. Any vaccination policy should also set out the employer’s data protection obligations in relation to processing special category personal data about vaccination status.

If you are an employer and have any questions about mandatory vaccination of staff in the health and care sector, please contact Jennifer Mansoor.