What to do if your staff are not vaccinated by 1 April 2022 – advice for businesses in the health and social care sector

On 1 April 2022 new regulations are coming into force affecting health and social care staff, including NHS workers and independent services, where it will be the duty of the person registered with the CQC (i.e. individual, partnership or organisation) to ensure that anyone who they engage or employ to provide direct, face to face, CQC regulated activity has provided evidence that they are fully vaccinated or medically exempt.

Similar regulations have been in force for care home staff since 11 November 2021, however this has now been extended to all health and social care workers.

While there is a call in the media to delay the compulsory vaccines to prevent staff shortages, at present the regulations are still due to come into force on 1 April 2022. It is important to monitor any changes to guidance.

Comprehensive guidance has been published by the Government, NHS and British Medical Association.

Who must be fully vaccinated by 31 March 2022?

If an individual meets the following requirements, they will need to be fully vaccinated or provide a formal medical exemption by 31 March 2022:

1. They work in a CQC regulated setting in England; and
2. Their role involves direct face-to-face contact with patients/service users; and
3. They provide CQC-regulated activity on behalf of a registered person.

Individual includes anyone who meets the above criteria i.e. employee, contractor, student, agency worker, volunteer etc. It does not need to be their primary full-time role – it can be an occasional part of their role.

If an individual does not qualify for a formal medical exemption, the cut off to be fully vaccinated is 31 March 2022. This means that individuals will need their first vaccine by 3 February 2022 to be vaccinated in time. It is therefore important that organisations commence consultation with staff on their vaccination, or exemption, status ready for this deadline. 

Are there exceptions?

The requirement to provide evidence of meeting the vaccination requirements or medical exemption does not apply to the following:

• Individuals who are participating (or have participated) in specific clinical trials. Evidence of their participation must be provided instead; and
• those aged under 18.

Also, if staff will not have direct, face to face contact with a person receiving care or support, the requirement will not apply i.e. head office workers, cleaners.

Key dates for compliance

6 January 2022: date the 12-week grace period started to allow individuals to receive their vaccination before the regulations come into force.

3 February 2022:  last date for unvaccinated staff to receive their first vaccine (to ensure they are fully vaccinated by the time the regulations come into force).

1 April 2022: regulations come into force and evidence of meeting vaccination requirements or medical exemption will be required.

Steps to take now

• Assess your workforce and identify who carries out CQC-regulated activity (even if this is rarely/ occasionally).
• Inform any staff who provide CQC-regulated activity about the potential impact of the regulations and timeframes.
• Consult with your staff and gather vaccination data (being mindful of GDPR and data protection policies) that includes staff who are:
  • vaccinated, medically exempt, or under 18 (with evidence)
  • vaccinated or believe they may be medically exempt (no evidence)
  • not yet fully vaccinated but will arrange to be fully vaccinated in time
  • not yet been fully vaccinated and unlikely to be fully vaccinated in time
  • over 18, not medically exempt and do not wish to be vaccinated

• Note any staff members who are due to turn 18, as the regulations will apply once they turn 18.
• Consider any staff who are not currently in the workplace i.e. on holiday, sick leave, family leave (maternity, adoption, paternity, shared parental etc.), or a career break.
• Consider introducing a written vaccination policy, and consulting with staff before implementing.
• Updating data protection policies – vaccination/exemption records are special category data, which needs to be processed very carefully.
• Alongside the above steps, it is also sensible to send out some general communications about vaccines and potentially provide information on initiatives to help encourage employees to be vaccinated where appropriate e.g. paid time of work to be vaccinated.

The Government guidance recommends that any concerns raised by staff should be explored, and a reasonable opportunity must be provided to receive a vaccination or obtain exemption evidence before formal action is taken. It is important to inform staff of the potential consequences of not complying with the vaccination requirement, the deadline for complying with the requirement, and what steps will be taken if it is not complied with.

What to do if your staff are unable to provide proof of vaccination or exemption

The first step is to explore redeployment i.e. whether any other suitable available options with the individual. This should include a discussion about the existing role and duties, and any alternative roles that do not involve CQC-regulated activity i.e. not direct face-to-face contact with patients/service users.

Once all other options have been explored, including a meaningful consultation with the individual about their role and any potential alternatives, steps may be taken towards dismissal. It is important to follow a fair process and act reasonably and fairly to reduce the risks of Tribunal claims (employees who have at least two years’ continuous service have the right not to be unfairly dismissed).

Potentially fair reasons set out in the guidance include:

• the employee cannot continue to work in their position without the employer contravening a duty or restriction imposed by or under an enactment, or
• some other substantial reason of a kind as to justify the dismissal of an employee holding the position which the employee held.

It is important to follow a fair process before dismissal, including consulting with the employee, warning them, understanding their circumstances, allowing them to have a companion to any meetings, keeping a full record of any discussions or meetings, acting consistently through the workforce, providing the right f appeal.

An additional consideration is the risk of unlawful discrimination, in particular disability due to the health nature of the regulations. The exception sets out it will not be unlawful discrimination in relation to age, disability, religion, or belief for a registered person to ensure that a person who is over 18 who has not provided evidence of satisfying the vaccination requirements (and is not medically exempt) does not deliver CQC-regulated activities. This does not extend to the other protected characteristics. Regardless of this provision, there will still be an obligation to consider redeployment into other roles. A failure to do so, could still amount to unlawful discrimination.

Any questions?

If you wish to discuss the above or have any specific questions regarding your workforce, please do not hesitate to contact one of our experienced Employment Lawyers on 01202 525333 for further advice.