UPDATE: Statement on Scrapping Vaccination as a Condition of Deployment

On 31 January 2022 the Secretary of State for Health and Social Care, Sajid Javid, made a statement that “it is no longer proportionate to require Vaccination as a Condition of Deployment through statute.”

Policy Review

Sajid Javid acknowledges that, in December 2021, he argued that the weight of clinical evidence in favour of Vaccination as a Condition of Deployment (VCOD) outweighed the risks to the impact on the workforce in NHS and social care settings. He said, “It was the right policy at the time – supported by the clinical evidence…It has also proven to be the right policy in retrospect – given the severity of Delta.”

Sajid Javid says, “I have always been clear that our rules must remain proportionate and balanced – and of course, should we see another dramatic change in the virus, it would be responsible to review this policy again.”

It appears that there has now been a ‘dramatic change in the virus’ warranting a review of the VCOD policy.

Factors

According to Sajid Javid, the two main factors influencing a review in the VCOD policy have been stated to be:

1. The population is now better protected against hospitalization from COVID-19 due to:
   1. Omicron’s increased infectiousness has meant that according to the ONS 1 in 15 people had a COVID-19 infection this winter;
   2. Around 24% of England’s population has had at least one positive COVID-19 test;
   3. 84% of people over 12 years old have had a primary course of the COVID-19 vaccine and 64% have been boosted; and

2. Omicron, which is the dominant variant, is less severe than the previous dominant variant, Delta. Hospitalisation with Omicron is approximately half of that for Delta.

Arguably, the potential worsening of the staffing crisis is also a factor at play. Sajid Javid does say “…we have to consider the impact on the workforce in NHS and social care setting. Especially at a time when we already had a shortage of workers and near full employment across the economy.”

Next steps for the Government

Sajid Javid’s statement highlights actions that the Government has taken and is due to take as part of this policy review:

1. A consultation on ending VCOD in health and all social care settings has been launched;
2. The revoking of the regulations will depend on the responses to the consultation and a Government vote;
3. There has been a request for fresh advice from the UK Health Security Agency and England’s Chief Medical Officer to enable the risks and opportunities of the VCOD policy to be weighed up;
4. Professional regulators have been asked “urgently review current guidance to registrants on vaccinations, including COVID-19 to emphasise their professional responsibilities in this area.”;
5. The NHS has been asked to “review its policies on the hiring of new staff and the deployment of existing staff, taking into account their vaccination status.”; and
6. Officials have been asked to consult on updating infection prevention control guidance which applies to all CQC registered healthcare and social care providers.

The Government’s stance regarding mandatory vaccinations remains the same. The Government is still urging health and social care workers and the general public to get vaccinated against COVID-19. The message remains that “everyone working in health and social care has a professional duty to be vaccinated against COVID-19”. Those health and social care workers who have had the vaccine have been praised for having “done the right thing” and “played a vital part in raising our wall of protection even higher and keeping thousands of vulnerable people out of hospital”.

Next steps for Health and Social Care Providers

Local NHS Leaders were written to yesterday and told “This change in government policy means we request that employers do not serve notice of termination to employees affected by the [vaccination as a condition of deployment] regulations.”

However, Health and Social Care Providers need further clarity regarding next steps. Whilst it appears that the deadline of 3 February 2022 for staff to have the first does of the vaccine, in order to have two doses by the 1 April 2022 deadline, has fallen away; confirmation of this is required. Furthermore, many Providers would have already began discussions with staff about redeployment and potential dismissal.

There is, of course, the fact that care home workers have either left their jobs or been dismissed when VCOD for care homes came in force on 11 November 2021. Noting that the consultation that has been announced will be on ending VCOD in health and all social care settings, we stand in wait to see what will be done to address the impact any change in law will have for care homes and their former staff.