The government’s big announcement regarding mandatory vaccines for health and social care workers came yesterday from the Secretary of State for Health and Social Care, Sajid Javid.  As of spring next year all health and social care workers, including volunteers who have face to face contact with service users, will need to provide evidence they have been fully vaccinated against COVID-19 in order to be deployed.

As with the mandatory vaccines within care homes, where the legislation comes into force on 11 November 2021, there will be some exemptions although they will likely be limited.

The mandatory vaccines in care homes already caused a great deal of controversy when it was announced.  In an already difficult sector to recruit within, there was a very real fear that the mandatory vaccine requirement would further reduce the pool of available staff and may create a situation where they are simply unable to provide the required care to their patients and service users.  I think that it is fair to say that the same fears are going to be felt with this most recent announcement.

The BBC Health Correspondent, Nick Triggle, makes some good points here.

The logic behind this move is obvious – the virus presents a real risk to vulnerable people in hospitals and the vaccine reduces the chances of infection and transmission.

So it’s not hard to understand why insisting on jabs for staff who have contact with patients will, in theory, help protect patients.

But if it causes more staffing shortages that simply increases risk in another way.

There are already more than 90,000 vacancies in the NHS in England. It is a number that has actually fallen during the pandemic after staff put off retiring to help out.

If those staffs take up their option to retire and mandatory vaccination forces others out, the NHS could find itself severely short of staff come the spring.

Mandatory vaccination comes into force for the care sector this week. Since it was announced, only two-thirds of the unvaccinated have come forward.

If a similar trend is seen for the NHS, vacancies would likely balloon to unprecedented levels.

Unison head of health Sara Gorton said she feared the move might knock staff morale further and prompt workers to leave – or lose their job.

The government should consider alternatives like daily testing, she said, and not risk making the same mistake made with mandatory jabs in social care – which she said had led to an unprecedented staffing crisis.

Regardless of your personal opinion on whether vaccines should be mandatory in the hope that the more vulnerable people within our communities are protected or not, what will not change is that it is going to be held within the legislation.  Therefore, as business owners, a failure to abide by the requirements will mean that you are breaking the law.

At this point, there is not a lot of detail available, but we consider it likely that, with the exception of the date that the legislation comes into force, the requirements are likely to be the same as those of the recent care home mandatory vaccine rollout.

Where will it apply?

According to the government announcement the requirements will apply across the CQC-regulated health and social care sector and encompass all providers that fall under that category.

According to the CQC, they are responsible for regulating:

• all hospitals – NHS and private;
• GP practices;
• Dentists;
• community health services;
• care homes; and
• agencies that provide care to people in their own homes.

It is therefore fair to say that if your business falls into any of those categories then it will likely be a requirement for you.

Will it apply to all staff?

The regulations will apply to health and social care workers who have direct, face-to-face contact with people while providing care – such as doctors, nurses, dentists and domiciliary care workers unless they are exempt.

They will also apply to ancillary staff such as porters or receptionists who may have social contact with patients but are not directly involved in their care.

It has not been specified yet whether it will apply to everybody within the organisations, including those who have no social contact with patients so that remains to be seen although it does reference ancillary staff although it doesn’t specify the reach of that description.

The requirements within care homes specify that it is everybody within the organisation and does not differentiate between the workers that have social contact with patients and the ones that don’t and so it may be that these requirements mirror those within the care home sector.

What if I provide services to the NHS?

There are a number of businesses that provide services to the NHS but are not regulated by the CQC and so will the requirement extend to those businesses is a question that a lot of business owners are going to want answering!

There is nothing in the recent announcement that states definitively that there will be a requirement for workers providing all services to NHS organisations. That said, the detail is currently quite limited.

If we consider the requirements with regard to care homes, they must ensure that a person does not enter the care home unless:

• the person resides in the care home used by the registered person (a resident) – ‘registered person’ means a person registered with the CQC as a manager or service provider in respect of a regulated activity – in this case, the regulated activity for the provision of accommodation for persons requiring nursing or personal care
• the person has provided the registered person (or those acting on behalf of the registered person) with satisfactory evidence that:
  • they have been vaccinated with the complete course of an authorised vaccine (the individual can prove they are fully vaccinated)
  • they, for clinical reasons, should not be vaccinated (the individual is exempt for medical reasons).
• it is reasonably necessary for the person to provide emergency assistance in the care home.
• it is reasonably necessary for the person to provide urgent maintenance assistance to the care home.
• the person is a member of the emergency services in execution of their duties.
• the person is a friend or relative of the resident visiting the resident (this also includes unpaid carers or designated essential care givers).
• the person is visiting a resident who is dying.
• it is reasonably necessary for the person to provide comfort or support to a resident in relation to a resident’s bereavement following the death of a relative or friend.
• the person is under the age of 18.

As there is a chance that these requirements may mirror those already clarified for care homes, if your organisation provides any service within an NHS organisation you may need to consider whether or not you would fall under the requirements.

My organisation will fall under these requirements, if my staff refuse the vaccine, can I sack them?

Whilst the mandatory guidelines are clear in that staff need to be vaccinated, that does not mean that you do not need to follow a process in order to dismiss them as this legislation will not remove the requirement to adhere to employment law.  A failure to follow a process may very well still render a dismissal unfair if brought to an employment tribunal.

You would need to explore all other options such as redeployment etc. prior to taking the step of dismissal.

We would recommend undertaking a consultation period with your staff to discuss all options.  As it appears that this is going to be a legal requirement unless they can prove an exemption then if they fail to become vaccinated by the required date then it would likely end in dismissal for Some Other Substantial Reason (SOSR).

If I don’t want to make it mandatory in my organisation can I make that decision?

You will almost certainly not have an option as to whether your staff are vaccinated or not if you are an organisation that these requirements refer to.

The only reason, currently, for staff to be able to carry on working in care homes past 11 November 2021 without a vaccination is if they have a medical exemption.

We assume that the exemptions will be similar to those in place within care homes, which are very limited and require a formal application to attain.

If it is mandatory in the healthcare sector, can I also make the vaccine mandatory if I am in a different sector?

It is our opinion that other than in the healthcare sector, vaccines are unlikely to become mandatory in other sectors.

The fact that particular sectors have now been identified as having the need for mandatory vaccines it will actually mean that a dismissal in sectors that have not been identified as mandatory are more likely to be deemed to be unfair.

If you did dismiss for a failure to vaccinate you will have to show a legitimate reason for the dismissal which is likely to be difficult.

How can we help you?

This is going to be a very difficult time for any organisation that provides front line support to the NHS as there is likely to be a lot of pushback from staff who are currently choosing not to have the vaccine.

The process that you follow is key to any resulting dismissal being considered to be fair, if you require any guidance on an appropriate process then please get in touch and speak to one of our expert advisors.

For employment advice or for a free assessment contact us today