The aim of the current consultation is to seek views on whether or not the Government should extend the existing statutory requirement for those working or volunteering in a care home to be vaccinated against COVID-19 to other health and care settings, and, in addition, whether to introduce a statutory requirement to be vaccinated against the flu as a condition of deployment.  The Government have said that a final decision is expected this winter.

Should the Government proceed with this change following the consultation, the vaccination requirement would be implemented through a change to Regulations to ensure all those that are deployed to undertake direct treatment or personal care as part of a Care Quality Commission (CQC) regulated activity are vaccinated.

As with the existing Regulations for care homes the consultation envisages there will be exemptions from the statutory requirement on medical grounds as a minimum.

What is the Government’s rationale for introducing mandatory vaccination?:

The Government’s rationale appears to be four fold:

• To further increase uptake levels of the COVID-19 and flu vaccinations amongst staff in health and care settings - The Government’s press release states that the percentage of NHS trust staff who have received one dose of a COVID-19 vaccine is around 92% nationally, with 88% of staff having received both doses. However, there is variation in uptake with new data showing that between NHS trusts, uptake rates can vary from around 78% to 94% for both doses.  National flu vaccination rates in the health service have increased from 14% in 2002 to 76% last year. In some settings, however, rates are as low as 53%.
• To protect vulnerable service users and staff – on the basis that vaccination reduces infection which in turn reduces transmission. As well as flu being a serious risk by itself, the consultation document quotes research which concludes that people infected with both flu and COVID-19 are more than twice as likely to die as someone with COVID-19 alone, and nearly 6 times more likely to die than those with neither flu nor COVID-19.
• Avoid disruption to services - A higher level of vaccination uptake is likely to reduce sickness absence at the times when vulnerable people are most likely to need health and social care.
• Parity of approach with care homes - The Scientific Advisory Group for Emergencies (SAGE) Social Care Working Group has advised there is a strong scientific case for parity of approaches with respect to vaccination between NHS inpatient settings and care homes, given the overlapping networks between residents/ patients and staff in both.

Alternative to mandatory vaccination?

The Government acknowledges the potential staffing impact of mandatory vaccination, if significant numbers of staff chose to refuse the vaccine and leave their current job.  So, it flags the alternative of continuing to rely on non-statutory measures to encourage COVID-19 and flu vaccine uptake.

Consultation questions

The consultation ask for views on the following areas:

• Views on the policy intention – it asks service users their views on whether the people who treat them should be vaccinated and asks those who provide that care the same question about themselves and their colleagues.
• Which persons should be required to be vaccinated – the Government’s starting point is those staff providing direct treatment or personal care. It asks if any of those roles should be excluded or whether there are any other groups who should also be subject to the same requirement.
• Whether to include staff aged 16 and 17 in the policy. The Government  is also considering whether to amend the care home Regulations, which currently exempt those under the age of 18, to ensure a single, consistent approach across the health and social care sector.
• Exemption – whether this should be limited to medical grounds or whether there should be any other basis for a person be exempt from this requirement.
• Directed to providers - Consideration of the potential impact of a policy of mandatory vaccination – both positive and negative. This consider the impact on staffing as well as whether such a policy could conflict with other statutory requirements that healthcare or social care providers must meet.
• Considerations relating to implementation - considering the best way for people to prove that they have been vaccinated to the registered person.

The Government is also considering an appropriate grace period before the new Regulations might come into force.

What does this mean for employers?

As mentioned in our June alert, our view was that the way in which the care sector deals with the new vaccination requirements is likely to be the benchmark in due course for the NHS and other healthcare providers, including in the independent health sector. We understand that a judicial review challenging  the Regulations legality is in the pipeline.  How this develops will undoubtedly have implications for a similar policy for the wider healthcare and care sectors.

As with the Regulations we expect that there will be a mixed reaction to the policy intention behind this consultation.  In one sense, should this proposal become law, it would be helpful for employers who wish to ensure their staff are vaccinated: we know of a few Trusts who’ve introduced mandatory vaccination policies.  The proposal would give employers a statutory framework to require this where persuasion has failed.  That said, in the current climate employers will have to carefully consider the proposals in light of the potential impact on staffing levels and moral.  It may also leave Trusts open to legal claims for applying such laws. We’ve seen grievances in the social care setting arguing mandatory vaccination breaches care workers right to a private life and is discriminatory.