By Matthew Wort, partner in the employment and pensions team at Anthony Collins Solicitors
As care home leaders are in the midst of carrying out their final steps to ensure all those working in their care homes are double vaccinated or clinically exempt, the government has published the response to its consultation on extending vaccination as a condition of deployment across the CQC regulated sector.
Despite 65% of respondents being opposed to mandatory vaccination, the government is pressing forward and has issued draft legislation that is likely to come into force on 1 April 2022. With over 200,000 people working across health and social care not fully vaccinated, the workforce impact of this policy could be catastrophic for an already beleaguered sector. This is a sector with strong and resilient leaders who I know will already be planning how to try and make this work for their organisation despite the massive challenge it presents. This blog gives a short summary of the consultation response on some of the key issues:
1. Who will the new law apply to?
The law will apply in respect to providers of CQC regulated activities and will be in respect of any person they ’employ or otherwise engage’ who has direct interactions with patients and service users ‘for the purposes of the provision of’ the regulated activity.
The consultation says the rules include ‘those non-clinical ancillary workers who may have direct, face to face contact with patients but are not directly involved in patient care’. This is very wide in scope and could arguably cover all head office staff who have interactions with service users.
The draft regulations themselves say they apply to those people employed or otherwise engaged by the CQC registered provider ‘for the purposes of the provision of’ the regulated activity. They go on to say those who do not have direct contact with service users are exempt. We consider the government should provide guidance to expand on who this could apply to as the wording of the draft legislation appears to be different to what the consultation suggests. By way of example, is it intended to apply to a hairdresser engaged to provide services in an extra care setting? Based on the wording of the regulations, we consider a hairdresser is not engaged for the purpose of the provision of the regulated activity and would therefore not be covered. Another example is that the consultation suggests it would apply to cleaners. However, we consider that has been written with cleaners in a hospital setting in mind and we do consider the draft regulations would extend to them. However, we doubt they would apply to a cleaner in an extra care setting employed by a landlord.
Any person within the remit of the new regulations will need to have had both doses of a vaccine approved in the UK.
2. When will it come into effect?
The consultation response says the regulations will not come into force until 1 April 2022. It also states that they will not take effect until 12 weeks after the regulations are made. As a result, the precise date for implementation isn’t clear. For now, providers should work to the 1 April 2022 date.
3. Are there any exemptions?
In short summary these will be:
- those providing care as part of a shared lives arrangement
- those who are medically exempt
- under 18s
- those involved in clinical trials for a Covid-19 vaccine
4. Has the government set out a list of medical exemptions?
Sadly, not yet. It says it will publish more detail about exemptions. Those who have been wrestling with the rules for vaccination in care homes will have heard this before. The current system for claiming a medical exemption is explained in our blog and we expect the same rules will apply. Pregnant employees will be exempt until 16 weeks post-birth.
5. What about new recruits?
It will be possible to employ those who have had one dose of the vaccine, with a second dose due within 10 weeks. There is further detail on how this will work in the consultation.
6. Is this going to apply to flu and booster jabs?
The government has decided not to extend the requirements to flu or Covid-19 booster jabs at this time but hasn’t ruled it out.
7. The government had talked about extending the rules to whole settings, such as residential recovery services for drugs and alcohol, hospices, and registered extra care and supported living services. What is happening about that?
The government has chosen not to apply a blanket rule to everyone who enters these settings but note our comments in relation to question one.
8. What about those vaccinated abroad?
The government will publish more detail and this may include a requirement for a top-up dose with a UK authorised vaccine. Those vaccinated abroad will need to provide evidence that their vaccination status is consistent with the UK Health Security Agency (UKHSA) guidance.
9. What should we do next?
Providers will need to consider which of their staff are covered and put in place a programme of communication and engagement with staff to seek to ensure that as many staff as possible are double vaccinated ahead of the regulations coming into force. Providers should note that it could cover many head office staff as well as care staff and will need to plan accordingly. This could also mean the impact on care providers will be even greater than many have anticipated.
We prepared a toolkit for care homes on mandatory vaccination in that setting and are now preparing a toolkit for providers to implement these proposed regulations.
To register your interest and to get a summary of what the toolkit covers please contact Regena Hodgson.