Out-Law News 3 min. read
11 Nov 2021, 9:49 am
The rule will apply in all health and social care settings regulated by the Care Quality Commission (CQC). It will apply to all workers, volunteers and ancillary staff who have direct contact with patients in healthcare settings or in patient homes, including doctors, nurses, dentists, home care workers, porters and receptionists. Medical exemptions will be available.
The requirement is due to come into force in the spring once the relevant regulations have passed through parliament, with a 12-week grace period between passage and entry into force to allow time for those who have not yet been vaccinated to receive both doses. The government intends to begin enforcement on 1 April 2022, subject to parliamentary approval.
The new rule follows a government consultation. It builds on similar requirements for care home workers in England, which take effect on 11 November 2021. The government said that there was also “longstanding precedent” for vaccination, against Hepatitis-B, under workplace health and safety policies for certain NHS roles.
Health and social care secretary Sajid Javid said that the rule was being introduced to protect vulnerable patients, as well as healthcare workers.
“Vaccines save lives and patient safety is paramount,” he said.
“Many of the people being treated in hospitals or cared for at home are the most vulnerable to Covid-19. We have a responsibility to give patients and staff the best possible protection,” he said.
Partner, Head of Healthcare
The sector needs a clear plan and direction from the government, it needs to be able to offer wages that attract people to the roles and to be provided with proper funding to ensure that vulnerable people can be cared for
Over 90% of NHS workers have received the first dose of an approved Covid-19 vaccine, while 89.9% have received both doses, according to figures cited by the government. In social care, 83.7% of home care workers have had their first dose and 74.6% have had both doses. However, the government said that over 103,000 NHS Trust workers and 105,000 care workers are not yet recorded as fully vaccinated.
The requirement applies only to a full first course of an approved Covid-19 vaccine and not any recommended boosters, although the government intends to keep this under review. It has also ruled out mandatory flu vaccination in line with the views of the majority of respondents to its consultation, although this too will be kept under review.
Exemptions will only be available for those without face to face contact with patients; participants in Covid-19 vaccine clinical trials; those aged under 18; and on medical grounds. The government explored other potential exemptions to the policy in its consultation, including for those who are pregnant and on religious grounds, but decided against this so as not to undermine the public health benefits of the policy.
This week, Northern Ireland’s health minister Robin Swann announced plans for a public consultation on a mandatory Covid-19 and flu vaccination requirement for new recruits to the Northern Irish health and social care workforce. Swann said that any such measure would only be introduced “after careful consideration”. Wales has ruled out the introduction of any mandatory vaccination requirement for the time being, while the Scottish government has not made any proposals to make vaccination compulsory.
Dr Anne Sammon
Employers should look at whether there are other roles that the employee could fulfil before making any decision to terminate employment ... It will be important for the employer to show that it has given consideration to the issue of alternative employment and followed an appropriate process in relation to the termination
Ahead of the introduction of the mandatory vaccination requirement for those working in registered care homes in England, the National Care Association warned that the policy risked staff shortages going into the winter. It called for an “eleventh hour” extension to the deadline, in line with that proposed for the NHS.
Healthcare expert Joanne Ellis of Pinsent Masons, the law firm behind Out-Law, said: “The care home sector is in the grip of a staffing crisis that will only be intensified by employees leaving the profession as a result of these rules, and potentially making it more challenging to recruit. This is at the same time as trying to ensure the welfare of all residents is protected, and reducing the risk of bringing Covid-19 into care home settings. It is also difficult to reconcile why this requirement should begin now for care homes, but the NHS has been given a period of grace until the spring”.
“The sector needs a clear plan and direction from the government, it needs to be able to offer wages that attract people to the roles and to be provided with proper funding to ensure that vulnerable people can be cared for. I hope that we see viable solutions soon,” she said.
Employment law expert Anne Sammon of Pinsent Masons said that where staff refused to be vaccinated, employers “should look at whether there are other roles that the employee could fulfil before making any decision to terminate employment”.
“There are unlikely to be any such roles, on the basis that all care home workers and anyone entering a care home will need to be fully vaccinated, but it will still be important for the employer to show that it has given consideration to the issue of alternative employment and followed an appropriate process in relation to the termination,” she said. “This is likely to involve confirming that the employee has not been vaccinated, explaining the consequences of not being vaccinated – that is, that the employer will have to terminate the employee’s employment – and then terminating in accordance with the provisions of the employment contract.”
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