UPDATE: Revoking of Vaccination as a Condition of Deployment

On 31 January 2022, the Government announced that it was looking to scrap vaccinations as a condition of deployment (VCOD) in health and all social care settings, with the Secretary of State for Health and Social Care stating that “it is no longer proportionate to require Vaccination as a Condition of Deployment through statute.”

This put providers into a state of confusion – Care Homes had already gone through the process of dismissing unvaccinated staff, a requirement of the regulations that came into force in November 2021. Other social care and health care settings were gearing up for the applicable regulations coming into force on 1 April 2022 and faced the looming deadline of 3 February 2022, which was the date workers needed to have the first COVID-19 vaccine in order to be fully vaccinated by 1 April 2022. The Secretary of State for Health and Social Care’s statement provided little clarity on the finer detail of this complicated and controversial requirement.

The last couple of days has seen the release of a number of documents which provide a little more clarity:

Consultation

On 9 February 2022, the Department of Health and Social Care (DHSC) launched the awaited consultation Revoking vaccination as a condition of deployment across all health and social care seeking views on the intention to revoke the provisions within the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 made by the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 and the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No.2) Regulations 2022. These regulations place requirements on health and social care providers to only employ, engage and deploy workers who are fully vaccinated, exempt from having the vaccine or who covered by a number of exception.

The consultation summarises the latest clinical and scientific evidence indicating a change in the need for vaccination as a condition of deployment. The consultation asks a few questions surrounding:

  • Preference for the requirement
  • Steps to increase vaccine update
  • The impact on those with protected characteristics

The consultation is now live and closes at 11:45pm on 16 February 2022.

NHS England and Improvement FAQs

On 9 February 2022, NHS England and Improvement (NHSEI) produced revised FAQs in light of the Secretary of State for Health and Social Care’s announcement. The focus is on what providers/employers should do during this period of limbo. Most importantly, it provides two clear messages:

  1. In relation to care homes, employers should continue to follow the requirements that healthcare workers and volunteers entering the setting will need to be fully vaccinated unless they are exempt under the regulation. Any changes to this requirement will be determined by the outcome of the Parliamentary passage on revoking the regulations.
  2. In relation to other social care and health care settings, any formal actions to dismiss staff should be paused pending the outcome of the Parliamentary passage on revoking the regulations. If staff have already been dismissed or resigned it is advised that employers meet with the individual to advise them of the Government’s consultation on revoking the regulations and try to reach a mutual agreement should the employee wish to return.

The FAQs also provides suggestions regarding new and existing staff. In relation to new staff, employers are encouraged to continue to include the requirement for vaccination in their job adverts for in-scope roles (as well as providing advice that this is under legislative review) and continue to ask for vaccination status as part of their pre-employment health checks “as this is still in line with current legislation and NHS Employers employment check standards”. In relation to existing staff, the guidance advises employers to continue to meet with unvaccinated staff that are in-scope of the regulations. These meetings should be about providing encouragement and support vaccine uptake.

The scoping exercise recommended by NHSEI back in December 2021 was confusing, the detail of which contradicted what was provided by the DHSC; and frankly, as the main message remains that staff have a professional duty to get vaccinated as vaccination “remains our best line of defence against COVID-19,” employers can stick to general engagement, encouragement and support for the vaccine regardless of whether roles are in scope or not.

Department of Health and Social Care Q&A

Also on 9 February 2022, DHSC published updated Q&A. The publication does not add much to the NHSEI FAQs but makes more references to employers who dismissed unvaccinated care home workers from 11 November 2021. DHSC reminds us that those employers were complying with the law at the time. It is also clearly stated that, “Making vaccination a condition of deployment was the right decision at the time, supported by the best available clinical evidence, and was the right policy in retrospect…The government will therefore not be offering compensation to unvaccinated staff who were dismissed or chose to leave the care home workforce.”  

Care Quality Commission Statement

In a statement published on 7 February 2022, the Care Quality Commission (CQC) has acknowledged the Secretary of State for Health and Social Care’s announcement of the consultation on ending vaccination as a condition of deployment. The CQC is currently tasked with enforcing the regulations that require vaccination of care home workers, and has spelled out that while the consultation is ongoing, it will not seek to re-rate any services which have already or are found to be in breach. However, note it appears that breach of the VCOD regulations applying to care homes, which is currently still law, can be one of many issues that result in CQC enforcement action. To be clear, the CQC is unable to enforce the regulations for other social care and health care settings until they are in force.

Information regarding the revoking of the regulations mandating COVID-19 vaccinations in health and all social care settings is slowly trickling through, but the situation for providers is not getting easier. The VCOD policy has been a massive blow to the health and social care sector in the midst of a staffing crisis. Providers should seek legal advice if they remain unsure about what they should be doing about staff vaccinations during this period or if decisions have been made, such as decisions to dismiss unvaccinated workers, which are now being challenged.

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