Levelling the playing field on vaccinations in the wider health and care sector

A consultation has been launched on extending mandatory vaccination requirements beyond care homes to other health and care settings for Covid-19 but also for flu. The consultation is open for six weeks, closing on 22 October 2021.

The consultation proposes that the new requirements would apply to frontline health and care workers – those with face-to face contact with patients and clients through the delivery of services as part of a CQC regulated activity. This would include care provided in care homes, at home, in hospitals or in general practice. It would mean that only those workers who are vaccinated could be deployed, unless medically exempt, to deliver those services.  If introduced, such a requirement would require an amendment to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.

The Government is considering what would be an appropriate grace period before the new Regulations would come into the force. A 16 week grace period would appear to be a minimum in our view but with experts predicting the next flu season might be particularly tough, the Government may be keen for a shorter grace period.

Key headlines from the consultation

  • Vaccination as a condition of deployment would apply to CQC regulated activities whether they are publicly or privately funded. Anyone undertaking direct treatment or personal care would be required to be vaccinated against both Covid-19 and flu in England.
  • The requirement would apply equally where a regulated activity is delivered though, for example, agency staff, or contracted to another provider.
  • The Government is also considering whether some CQC regulated activities provided from residential or inpatient settings (for example, residential recovery services for drugs and alcohol, hospices, and registered extra care and supported living services) should be subject to this requirement. The case for this would be that they are sufficiently similar in nature to care homes where they have already introduced a condition of deployment to require people working or volunteering there to be vaccinated.
  • The requirement to be vaccinated against flu would mean that care home operators implementing the new Regulations would also need to include the flu vaccine.
  • As to booster doses, these may be included pending final JCVI advice on any booster programme which is expected shortly. Following this advice, the government will consider the incorporation of any booster dose, in addition to the primary dosing schedule, within the requirement of a complete course.
  • The Government is also looking at whether or not mixed doses, should be included in future requirements. Currently, the requirements in relation to care homes do not currently recognise people as vaccinated where they have had mixed doses of Covid-19 vaccines or where they have undertaken a full course of a non-MHRA approved vaccine.

Responding to the consultation

The consultation can be found here and you can respond to the consultation online by 22 October. We would encourage all health and care providers undertaking regulated CQC activities to have their say and respond to the consultation as clearly the impact will be very significant.

We are already receiving numerous queries regarding the implementation of mandatory vaccines in the care sector (both from care homes but also organisations providing services within care homes) and the scale of this proposed extension will undoubtedly be a challenge, both from a service provision and employee relations perspective.  We have not yet seen how the implementation of mandatory vaccines in the care sector, which comes into force on 11 November 2021, will impact care provision. This may provide useful guidance in relation to the Government’s proposed extension.

The wider context

With news of a judicial review challenge in relation to the mandatory vaccination regulations for care homes and ongoing workforce and staffing concerns, it is interesting to note that the Government acknowledges in its consultation document its concerns:

“it is clear that vaccine hesitancy exists as a real concern for some and is more prevalent within certain groups of our society. As such, there is a risk that some health and social care workers may continue to decide not to be vaccinated and therefore no longer meet the requirements to be deployed. A reduction in the number of health and social care workers, could, in turn, put additional pressures on the social and healthcare sectors.”

Do get in touch if you would like to discuss any of the issues raised - whether it’s a regulatory or employment query, we can help.

Joanna Burrows and Fiona Goodman

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Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

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