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The government announced on January 31 that the requirement for social care and NHS staff who come into contact with patients to be vaccinated against COVID-19 as a condition of deployment is being reviewed. Following the Secretary of State’s announcement in the House of Commons that vaccination as a condition of deployment was ‘no longer proportionate’, NHS England and Improvement have written to NHS bodies, asking employers not to notify unvaccinated personnel.
The government’s objective is to repeal the Regulations, subject to parliamentary approval. These include both the Health and Welfare Regulations which required vaccination as a condition of deployment by April 1, as well as the Regulations imposing a similar requirement on nursing homes in November 2021. The Secretary of State to Health cited the decreasing severity of the impact of the Omicron variant COVID-19, as well as widespread immunity, as key reasons for the policy reversal. There will be a two-week consultation, then a regulatory text will be presented to Parliament for approval. The consultation has not yet been published.
Since the NHS regulations were approved by Parliament in December, NHS providers have grappled with the practical and legal difficulties of implementing them and have sought to persuade their staff to accept their first dose of vaccine by 4 February. It had been estimated that nationally up to 80,000 unvaccinated NHS staff could have been made redundant on April 1 if the regulations had been enforced. There had been widespread uncertainty among NHS providers about which employees and contractors should be treated as having direct face-to-face contact with service users, and therefore under the mandate of the vaccine. Social care providers have criticized the regulations for exacerbating staff shortages in the sector.
The government has asked professional regulators to review their guidance on vaccinations, to emphasize the professional responsibilities of registrants. There will also be changes to the government’s code of practice for CQC-regulated providers, regarding infection prevention and control and COVID-19.
What this means for employers:
In response to the Regulations, NHS employers have revised their recruitment and deployment policies, to take account of the vaccination requirement. The Secretary of State clarified that this approach is encouraged.
The repeal of the Regulations does not mean that health and social care employers who consider it necessary to terminate unvaccinated staff for health and safety reasons cannot do so – but they should be aware of the need to justify such a policy and determine whether it is proportionate. In the absence of regulations requiring the vaccination of patient-contact staff, policies will need to be carefully drafted to balance effective infection control with the human rights and equality concerns that a mandatory vaccination policy might face. lead. This will be particularly important when employees refuse vaccination for reasons related to disability or religious reasons/beliefs.
We anticipate that most employers covered by the Settlement will discontinue any current process related to the termination of unvaccinated employees. Employers may also need to consider ancillary grievances raised by unvaccinated staff, although we believe these can now be dealt with summarily.
It is always possible to require the vaccination of new employees provided that it is justified (we suggest at least a health and safety risk assessment). Vaccinations against Covid-19 would then become similar to other health authorizations and treated in the same way.
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