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On 9 November, the Government announced that from April 2022 all NHS staff will be required to provide evidence that they are fully vaccinated against COVID-19. Currently the flu jab is not mandatory but this will be kept under review ahead of next winter.
This brings the NHS in line with existing regulations which came into effect on 11 November, requiring all CQC registered care homes to ensure that no one enters their premises who has not been vaccinated.
The rationale for the policy is to protect patients a large number of whom are vulnerable, NHS staff and the NHS by reducing sickness absence. The policy will apply to both the NHS and private health sector providing CQC-regulated activities in health and social care settings including hospitals, GP practices, dentists and home care whether this is publicly or privately funded.
The regulations will require all workers over 18 who have face to face contact with patients to provide evidence of a complete course of an approved vaccine. This will include not only front-line clinical staff, but also non-clinical staff who may have direct contact with patients including receptionists, porters and cleaners.
Staff who do not have face to face contact with patients (e.g. those providing telephone consultations or in managerial roles off site away from patient areas) or who are medically exempt will be exempt from the vaccination requirement. Staff on long-term absence (e.g. maternity or sickness absence) will not be caught by the requirement until they return to work and have contact with patients.
If the regulations are approved, as thing stand, staff will need to have had their first dose by 3 February 2022 to receive their second dose by 31 March. Generally proof of vaccination will be via the NHS COVID Pass or the EU Digital COVID certificate.
Medically exempt staff will evidence their status via the NHS COVID Pass, they will also receive a letter for their own records to prove they are medically exempt. Exempt staff can continue to work, but managers will be expected to take steps to ensure health and safety and to update risk assessments to ascertain the risk of spread and the level of risk to the individual, workers, patients and visitors. Other measures may be required such as reviewing PPE, lateral flow testing, remote working, ventilation and cleaning regimes.
The CQC will be responsible for monitoring compliance. Employers will need to keep vaccination records as part of their employment records. It will also be essential to comply with the Data Protection Act, to keep the data securely and staff data policies and privacy notices will need to be updated.
According to NHS Guidance published on 6 December, Employers affected by the changes should be laying the groundwork now by:
- Assessing which roles may fall within the scope of the new regulations.
- Updating staff privacy notices and data protection policy documents.
- Engaging with staff to support vaccination uptake.
- Understanding medical exemption status.
- Agreeing arrangements for evidencing vaccination status with partners who provide staff, including agencies and educational establishments.
- Begin to identify any potential redeployment options to non-patient facing roles.
- Plan and identify workforce redesign ahead of 1 April 2022 to support staff wellbeing and avoid service disruption.
Although the vaccination requirements are mandated by law, there will be scope for grievances and dispute. The legal requirement will be helpful to employers in that they will have no option but to comply with legislation, but there is scope for dispute around redeployment opportunities and whether employers have properly considered other options to avoid ultimate dismissal if staff do not comply with the requirement.
For employment advice on this topic, speak to Laura Claridge in our employment team.