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03rd March 2022

The end of mandatory vaccination for care workers

Can you still hire unvaccinated staff? What happens to staff who were dismissed due to the VCOD regulations? Nikita Passi, Solicitor at Napthens answers these and more following the Government announcement that its no jab, no job requirement no longer applies.

In July 2021, following The Department of Health and Social Care ’s review, it was decided that it would be a compulsory requirement for persons working in Care Quality Commission (CQC) care homes or providing services in CQC regulated care homes to be vaccinated against COVID-19. This was introduced to protect the residents and their carers. This requirement was finalised and made law in November 2021 under the Health and Social Care Act 2008 (Regulated Activities) (Coronavirus) Regulations 2021 (Regulations).

This legislation meant that the Registered Managers of CQC registered care homes were responsible for ensuring that any individuals entering the premises to work or provide services (who were over the age of 18) had to have proof that they have been fully vaccinated against COVID-19, unless they had a medical exemption. This includes but is not limited to care home nurses, agency staff, volunteers, caterers, builders, cleaners and even hairdressers. For members of staff, anyone not vaccinated may have been subject to dismissal if there were no alternative suitable roles available which did not require them to be fully vaccinated.

Following on from this legislation, it was announced that from 1st April 2022 the compulsory vaccination legislation will cast a wider net and frontline NHS and wider health and social care workers who have direct face to face contact with service users must also have had both doses of the COVID-19 vaccine by 1st April 2022 (meaning the majority of staff would need their first dose by 3rd February 2022 or may risk losing their job) as outlined in the Health and Social Care Act 2008 (Regulated Activities) (Coronavirus) (No.2) Regulations 2022 (Regulations No 2). Frontline staff would include doctors, nurses, GPs, dentists, paramedics, phlebotomists, midwives and receptionists amongst many others.

This announcement was met with strong opposition. There was a concern that, if implemented, thousands of NHS workers would lose their jobs (around 1 in 20 are unvaccinated). The argument was that this legislation would aggravate an already overstretched NHS workforce.

However, on the 31st January 2022 (just 3 days before that looming deadline for front-line NHS staff to receive their first dose of the COVID-19 vaccine) it was announced that the Government would consult to revoke the Regulations and Regulations No 2 as it was no longer proportionate to require vaccinations as a condition of employment. This U-turn has now been confirmed by the Government and as of the 15th March 2022, care workers working in CQC regulated care homes and front-line NHS staff will no longer be required to be vaccinated against COVID-19 as a condition of deployment.

But what about care workers that have been subject to mandatory vaccination requirements since November 2021?

Following the Government announcement on 31st January 2022, CQC regulated care homes were advised that they should continue to follow the requirements that care home workers entering a care home will need to be fully vaccinated unless they are exempt under the Regulations until the consultation process was concluded and a decision on whether the Regulations would continue to be in force was made.

Following the public consultation in February 2022 in which 90% of responses supported removing the mandatory requirement, from 15th March 2022 the Regulations requiring a COVID-19 vaccination to work in a CQC registered care home are to be lifted.

As a result, the legal requirement for wider health and social care staff to be double jabbed from 1st April 2022 under the Regulations No 2 will also be removed.

Therefore, please note that the QCS policies on Mandatory COVID-19 Vaccination will cease to apply from 15th March 2022.

In addition, I have answered some questions that you may find useful.

As a health and social care employer, can I hire unvaccinated staff now?

Until the reversal of the Regulations on the 15th March 2022, CQC care home workers are still required to have had two doses of a COVID-19 vaccine to enter the care premises (unless they have a medical exemption) and Registered Managers should continue to ensure they have proof of vaccination or exemption.

The Regulations No 2 were due to come into force on the 1st April 2022 for the wider health and social care workers but they will no longer come into force. As such, those working in a wider health and social care setting no longer need to provide proof that they have been fully vaccinated against COVID-19.

What about if I only want to hire vaccinated staff even after the legislation is revoked?

As an employer you can consider implementing your own policies on vaccination, however you would need to be wary of mandating COVID-19 vaccination, especially given the Government’s advice that it is no longer proportionate for all staff to be vaccinated.

What happens to care workers that left their jobs or were dismissed because of the requirement to be vaccinated?

If the staff are still unvaccinated and want to come back to work, they can be rehired after the legislation is lifted.

If you dismissed an employee because of the legislation and followed any necessary fair process, this change does not make that dismissal retrospectively unfair.

Although somewhat unhelpfully, the Government still state that it is the ‘professional responsibility’ of health and social care staff to be vaccinated.

Is it likely that we will receive any more regulations?

The Government announced that they intend to work closely with royal colleges and professional regulators to update the code of practice and provide guidance on COVID-19 requirements for CQC-registered providers of health and social care in England.

It appears that whilst the Government is scrapping the legislation, it is still intending to provide more ‘guidance’ to health and social care employers.

If you have any questions in relation to the Government’s scrapping of the mandatory requirement for care home workers and front-line NHS staff to be fully vaccinated against COVID-19, then please do not hesitate to contact a member of the Napthens’ employment team.

*All information is correct at the time of publishing. Use of this material is subject to your acceptance of our terms and conditions.

Napthens LLP

Employment Law Specialists

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