Vaccination as a condition of deployment in healthcare

From 1 April 2022 registered persons of healthcare settings can only employ, or otherwise engage, a person in respect of a CQC regulated activity if the person provides evidence that they have been vaccinated against coronavirus or is subject to certain exemptions. This policy provides parity between healthcare and social care, given that it has been a requirement since 11 November 2021 that all those working or volunteering in a care home need to prove either their COVID-19 vaccination status or an exemption from having the vaccine. In this article, I delve into the detail of the change in law. Whilst there are some obvious similarities between the rules that apply to care homes and those that will apply to the healthcare sector, I highlight some of the surprising differences.

Why will vaccinations be mandatory in the healthcare sector?

To answer simply, the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No.2) Regulations 2021 making vaccination a condition of deployment for health and social care workers were approved on 14 December 2021. This is despite the policy meeting concerns from medical and care bodies.

The responses to the Government’s consultation in September 2021 raised concerns that staff would leave their jobs as a result of the rule change and that this would have a detrimental impact on workforce capacity – a valid concern when there are approximately 90,000 vacancies across the NHS in England and the Government’s impact assessment predicts that 73,000 NHS workers and 50,000 staff in the independent and domiciliary care sector will not have fulfilled the conditions of deployment by 1 April 2022.

Most notably, despite the majority (65%) of respondents not supporting the proposal, the Government decided to introduce the regulations. The priority being to ensure protection against infection with the hope of easing pressures on the NHS as a result.

Which vaccination?

Although the Government originally consulted on whether both COVID-19 and flu vaccinations should be mandatory, it has been decided that only COVID-19 vaccinations will be mandatory. It has also been decided that booster doses are not currently included in the regulations. The Government has said that it will keep this under review and providers have been advised the encourage workers to take up the boosters. £25 million of funding was announced back in September 2021 to support workers accessing vaccines including the flu vaccine.

The COVID-19 vaccines currently approved in the UK are Moderna, Oxford/AstraZeneca, Pfizer/BioNTech and Jenssan (which is not currently available). The Government and NHSEI have confirmed that mixed doses (where different vaccines have been administered to complete the dose schedule), will be accepted for the purposes of the vaccination requirements. The vaccination requirements for care homes differs and does not recognize people who have received mixed doses. It is understood that the Government will be making changes to the regulations and guidance that applies to care homes to ensure consistency across health and social care.

Scope of the vaccination requirement

The regulations will apply to health and social care workers who have direct, face-to-face contact with patients. This includes doctors, nurses and dentists, unless they are exempt.  The deciding factor is whether the worker has direct, face-to-face contact, so whilst this obviously covers frontline workers, it also applies to non-clinical workers who are not directly involved in patient care but who nevertheless have direct, face-to-face contact with patients, such as receptionists, ward clerks, porters and cleaners. The regulations also apply to domiciliary care workers and when care is provided in a service user’s/patient’s own home, as well as when care is delivered through agency workers, volunteers, trainees or contracted to another provider.

The NHSEI guidance explains who is out of scope; “those providing care remotely, such as through triage or telephone consultations or those in managerial roles working on sites separate from patient areas would not have direct face to face contact and so registered persons could continue to deploy them in those roles as usual”. Additionally, people on long term absences from work (e.g. maternity, shared parental leave or sickness absence) will not be in scope. However, they are in scope as soon as they return to having face-to-face contact with patients. The NHSEI guidance says that this includes one-off visits, such as Keeping in Touch days, but arguably it would depend if those visits involve having face-to-face contact with service users.

Another deciding factor is whether the role of the health and social care worker is part of the provision of a CQC regulated activity. This includes services that are publicly (e.g. NHS) or privately funded as well as voluntary and third sector services. There is a long list of activities that the CQC regulates including personal care, nursing care, surgical procedures and maternity and midwifery services to name a few. Children’s services, clinics, community-based services for people with learning disabilities and substance misuse, hospices and health and justice secure settings are also types of services regulated by the CQC. Shared Lives caring arrangements are excluded from the requirements, despite the scheme being regulated under the regulated activity of ‘personal care’ if such care is provided. According to the Government’s response to the consultation, this is because the Shared Lives caring model is different from other forms of care as it involves the care recipient living in the home of the carer.

It is important for Providers to undertake an assessment of the roles that will fall within scope. Take note of the NHSEI guidance which, in my opinion, confuses matters more. At Appendix 2 of the guidance there is ‘VCOD Flowchart Scenarios’. The first scenario itself shows the difference in approach between social care and health care. Unlike in a care home setting, where anybody who crosses the threshold in a work capacity, including tradespeople, must evidence being full vaccinated or exempt, if “Scenario 1: Electrician (tradesperson) visits a hospital ward to fix some loose cabling”  and is not deployed for the provision of a CQC regulated activity, the tradesperson is not in scope of the policy. The guidance goes on to explain that “maintenance workers in the hospital estates and facilities tem are in scope of the policy as their role is part of the provision of a CQC-regulated activity. Additionally they are likely to have social contact with patients in clinical areas”. A similar rule applies to café workers and a ‘volunteer in a hospital shop located within an ante-natal clinic’. It would appear that a more sensible approach would be for direct, face-to-face contact to be the overriding factor rather than the provision of a CQC-regulated activity. Making ‘the provision of a CQC regulated activity the overriding factor’ may relate to the regulatory reach of the CQC who is enforcing the new regulations.

Vaccination Exemptions and Exceptions

Just as is the case with care homes there are exceptions and exemptions to the rule of mandatory vaccinations. In July and November 2021 I wrote on articles on mandatory vaccinations for care homes setting out the various exceptions and exemptions.  The exemptions that applied to care homes also apply to the health sector, there being only one exemption – that a worker is clinically exempt. Pregnancy is a short-term exemption which expires 16 weeks post-partum. In my November 2021 article I covered the guidance at the time on self-certification and formal clinically reviewed certification. A notable change since those articles is the Government extending the cut-off to self-certification to 31 March 2022. We still await detailed guidance on clinical exemptions which has been said will reflect the Green Book on Immunisation against Infectious Disease and clinical advice from the Joint Committee on Vaccination and Immunisation.

In relation to the wider health and social care sector it has been decided that as well as the exceptions that applied to care homes (visiting family and friends, under 18s, emergency service, and people undertaking urgent maintenance work) there will be two further exceptions:

  • that the worker has taken part in a clinical trial
  • new recruits can be deployed having had one dose of the COVID-19 vaccine provided they have their second dose within 10 weeks of the first.

The exception that applies to new recruits is more of a temporary exception. As explained at Appendix 3 of the NHSEI guidance, the effect of the regulation is different for staff based on the date that they are first employed or engaged for the purposes of the regulated activity. If the individual is employed or engaged during the grace period and has had only one dose, the employer must ensure that the individual has received their second dose 10 weeks from the date of the first dose. If the individual is employed on or after the date the regulations come into force and has had only one dose, the first dose must have been received at least 21 days before the first day of deployment and the employer must ensure that the individual has received their second dose 10 weeks from the date of the first dose.

Mandatory vaccinations regulations timeline

Employers should note the following dates:

  • 6 January 2022 – 12 week grace period commences
  • 3 February 2022 – Last date for workers to get their first dose to be fully vaccinated by 1 April 2022
  • 31 March 2022 – End of self-certification for medical exemption
  • 1 April 2022 – Regulations come into force

Providers are urged to use the grace period to plan, prepare and engage with staff. This includes but is not limited to assessing the roles that will likely fall within scope, communications with staff to encourage vaccine uptake, thinking of the arrangements that need to be in place with suppliers of temporary workers and identifying options for redeployment. As uncomfortable as it is, communications with staff should mention the potential consequence staff not meeting the mandatory vaccination requirement after 1 April 2022.

Watch this space

This is an area of continual development one which Ridouts has been following very closely. I am sure we will be writing a further article in the coming weeks. In the meantime, our team are always available to provide advice and support to health and social care providers on this and other matters.

 

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