Your Complete Guide to Mandatory Covid-19 Vaccinations
Earlier this month the government announced that The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 amendment had been passed by Parliament.
The regulations are amended as follows:
- Persons deployed or engaged in a CQC-regulated activity, in which they have direct, face to face contact with patients and service users, must provide evidence that they have been vaccinated with a complete course of a Medicines and Healthcare products Regulatory Agency (MHRA) approved COVID-19 vaccine.
- The vaccination as a condition of deployment (VCOD) requirements include front-line workers, as well as non-clinical workers not directly involved in patient care but who may have face to face contact with patients, including ancillary staff such as porters, cleaners or receptionists.
(Source- Vaccination as a Condition of Deployment (VCOD) for Healthcare Workers v.1 14th January 2022)
This means that with effect from 1st April 2022, it will be against the law for unvaccinated persons to continue to work beyond this date.
Are there any exemptions?
The amendment to the regulations will not apply to the following persons:
- Under 18’s
- Those who are participating/have participated in a clinical trial for a COVID-19 vaccine
- Those who should not be vaccinated against COVID-19 for clinical/medical reasons
- Those who are pregnant and have a temporary medical exemption which will be valid until 16 weeks following giving birth
- Those who do not have direct face-to-face contact with people receiving care.
What do employers need to do to prepare for this?
Employers need to ensure that they identify the roles which fall within the scope of the amended regulations and check the vaccination status of their staff. Care must be taken to ensure that any information is obtained and stored in accordance with General Data Protection Regulations (GDPR).
Following this, they must take all reasonable steps to inform their staff of the legislation coming into effect and how this may affect their employment.
Anyone who is exempt needs to inform you of this in good time. Those who are vaccine hesitant, for whatever reason, should be encouraged to discuss any concerns they have with their employer and/or a medical practitioner.
What are the key deadlines we need to be aware of?
All staff should be informed of the following key dates:
- 3rd February 2022
This is the date whereby those who are required by law to be fully vaccinated and are as yet unvaccinated without genuine exemption, must have received the first dose of the vaccine in order to be fully vaccinated by 1st April 2022.
- 1st April 2022
The above regulations will come into force. Anyone who is not fully vaccinated (except those who are exempt) cannot continue to work beyond this date.
Does this apply in Scotland, Wales and Northern Ireland?
No. At the present time the rules apply in England only.
Please note, the requirement to be fully vaccinated will apply to those living in one of the devolved administrations who carry out regulated activities for the NHS in England.
What about those who object for reasons based on religion or philosophical belief?
Less favourable treatment on the grounds of religion and philosophical belief is prohibited under the Equality Act.
However, at the moment the only exemption staff working can rely upon are those listed above. Objections on any other grounds are not going to give a member of staff a valid reason for not being vaccinated.
However, any grievances that are raised, should be appropriately addressed and advice sought.
Will an employee’s contract become null and void if they haven’t been vaccinated?
No. No employment contract becomes null and void. Someone’s employment usually ends one of two ways, and this situation is no exception:
A fair procedure to end the employment will be necessary, otherwise you will face potential claims, even though you have no choice but to adhere to the legislation.
Do we need to give staff time off during working hours to get vaccinated?
Given the importance of this matter, employers need to be flexible and make all reasonable attempts to accommodate their staff getting vaccinated.
What happens if a member of staff, who is not exempt, continues to refuse the vaccine?
You will need to carry out a fair procedure to potentially bring their employment to an end.
This will involve a meeting with the employee. This meeting should be arranged in writing, the letter scheduling the meeting should make clear the subject of the meeting, the possible outcome of that meeting and affording the employee their right to be accompanied by a fellow employee of the company or a trade union official.
You will need to discuss with the employee their decision not to be vaccinated, just to make sure there isn’t a valid exemption and explore with them any means by which their employment could be protected, such as alternative employment.
This does not mean that employers must create roles for unvaccinated staff or that they have a right to be placed into a role they are wholly unsuited to. It is simply a required step to demonstrate that the termination of their employment was the only option.
What would be the reason for these types of dismissals?
If you are faced with the unfortunate task for dismissing someone for failing to be vaccinated, this will be for reason of statutory restriction. Statutory restriction/statutory ban is one of the 5 fair reasons for dismissal.
This is because after 1st April 2022, it will be unlawful to allow someone who is unvaccinated (unless they are exempt) to continue to work.
What can I accept as proof of vaccination status?
- The NHS COVID pass, or equivalent from NHS Scotland, NHS Wales or the Department of Health in Northern Ireland; or
- The EU Digital COVID Certificate; or
- The Centers for Disease Control and Prevention vaccination card; or
- A certificate in English, French or Spanish issued by the competent health authority
What can I accept as proof of medical exemption?
Anyone with a medical exemption will need to show their exemption status with the NHS COVID pass.
There will also be a letter to confirm their exemption and it is understood that it is this letter that will confirm their exemption, not the NHS COVID Pass itself.
Employees can call the NHS COVID pass service on 119 if they believe they are medically exempt- they should not be encouraged to call the GP surgery.
Can we terminate employment before 1st April 2022 if we know someone has no intention to being vaccinated and has no exemptions?
The formal process can commence prior to the deadline; however, any notice of dismissals should not be issued before 4th February 2022 and should not expire before 31st March 2022. Employers who intend to pay someone in lieu of their notice need to be especially careful of this.
How is Avensure supporting their clients with this?
Whilst the change in law is not a change to employment legislation, rather it is a change to the Health and Social Care Act, this legislative change has a significant impact on employment, and we can assist our clients fully with is.
We can provide letters to inform your staff of the changes to the law. This letter is available by contacting us.
We will be able to provide full guidance and assistance to clients on the process for potentially terminating the employment of an unvaccinated member of staff.
For further information and guidance on which type of roles fall within the cope of the regulations and further advice on proof of exemptions and vaccination status, please see the below useful links.