Covid-19 Update: Compulsory Vaccination?
Key Contact: Claire Knowles
Author: Katie Shanahan
In November 2021, the Government implemented its plans for all health and social care workers to provide evidence that they have been fully vaccinated against COVID-19 in order to work. This is now a mandatory requirement. However, following the rise in Omicron cases in the UK over recent weeks, on Tuesday 14 December 2021 the Government voted in favour of further changes affecting the healthcare sector.
The new rules apply to frontline health and social workers deployed in respect of CQC regulated activity who have face-to-face contact with service users. This will include doctors, nurses, dentists, domiciliary care workers and several others who enter areas which are utilised for the provision of CQC regulated activity as part of their role and have social contact with patients. This could include receptionists, ward clerks and cleaners and will apply regardless of their working arrangements. The measures are aimed to ensure patients and staff are protected against infection and it will be a requirement of the health and social care provider to ensure their workers are vaccinated. The deadline for care home workers to have received both of their vaccinations was 11 November 2021 and research has shown that as at early November, 90% of NHS staff have received two vaccinations.
However, the rule for frontline NHS staff to be fully vaccinated will not come into force until 1 April 2022. The regulations mean that unvaccinated individuals will need to have had their first dose of the COVID-19 vaccine before 3 February 2022 (though this is subject to change) and their second dose by 31 March 2022, in order to comply with the April deadline.
What if they do not get vaccinated?
So what does this mean for healthcare workers who do not wish to get the vaccine? There has been some concern that individuals in certain roles will choose to leave their posts if the government implemented the mandatory vaccination measures. However, Sajid Javid, Secretary of State for Health and Social Care confirmed that “the scales clearly tip on one side”. Whether or not the flu jab will become mandatory for the relevant workers is being kept under review.
Employers in the healthcare sector will therefore be legally permitted to dismiss the relevant employees who refuse to be vaccinated and cannot be redeployed. However, employers are advised to exercise caution in dismissing employees and ensure they follow a fair and reasonable dismissal process in all circumstances. Employers must also consider their obligations under the Equality Act 2010.
It is thought that following the introduction of the new rules many employers will be considering their policies on vaccination and whether they can require their staff to be vaccinated against COVID-19. However, for the avoidance of doubt, the rules do not currently apply in other sectors.
The government confirmed that there would be exemptions to the mandatory vaccination policy for staff who do not have a face-to-face role with patients, in addition to those who are medically exempt from being vaccinated. Where some individuals are unable to be vaccinated, they can apply for proof that they have a medical reason meaning they should not be vaccinated.
Possible reasons for exemptions are listed below (please note that this list is not exhaustive):
- receiving end of life care where vaccination is not in the person’s best interests;
- people with learning disabilities or autistic individuals, or people with a combination of impairments where vaccination cannot be provided through reasonable adjustments;
- a person with severe allergies to all currently available vaccines; and / or
- those who have had an adverse reaction to the first dose (for example, myocarditis).
From 25 December 2021, exemptions for staff who work in care homes will need to be approved by doctors, specialist clinicians and in some instances, midwives.
What about pregnant workers?
The exemption currently also extends to pregnant women where the government is currently allowing them to delay vaccination against COVID-19 until after they give birth. Therefore, employers in the healthcare sector should ensure pregnant staff are informed of this position, as any action by an employer to treat an employee with a pregnancy-related medical exemption who is treated less favourably that an employee who does not have this exemption would be unlawful and could amount to discrimination.
At Acuity, we have experience in providing both business and individuals with advice regarding the impacts of the COVID-19 pandemic and what it might mean for you or your business. For further information, please feel free to contact a member of the Employment Team.