Mandatory Vaccinations and Exemptions in the Care Sector

The Regulations

On 6 January 2022 the Secretary of State signed into law Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2022 (SI 2022/15); https://www.legislation.gov.uk/uksi/2022/15/made. The result of this law is that from 1 April 2022 anyone providing care in a face to face setting, for example at someone’s home, will be required to be ‘fully vaccinated’.  As such, care providers need to start considering consulting and methods of record keeping as if individuals are to be fully vaccinated by 1 April 2022, they will need to have had their first vaccination by 31 January 2022.

From 11 November 2021 the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (‘the Regulations’) came into force. In essence the effect of the Regulations is that it requires all CQC-registered service providers (or registered managers) of accommodation for those who require nursing or personal care in a care home to ensure that a person does not enter the care home unless they are fully vaccinated (does not include having the booster at this stage) or provides the requisite evidence to demonstrate that they are medically exempt from having the vaccination.

In reality the application of the Regulations due to the changing deadlines and exemptions is quite difficult. We have assisted a number of clients in this area and would be happy to help with any queries you may have about the Regulations and the exemptions.

As mentioned, there are exemptions whereby a person will not be needed to be vaccinated, this is where:

• it is reasonably necessary for the person to provide emergency assistance in the care home
• it is reasonably necessary for the person to provide urgent maintenance assistance to the care home
• the person is a member of the emergency services in execution of their duties
• the person is a friend or relative of the resident visiting the resident
• the person is visiting a resident who is dying
• it is reasonably necessary for the person to provide comfort or support to a resident in relation to a resident’s bereavement following the death of a relative or friend
• the person is under the age of 18

Further details about these exemptions can be found in the Government Guidance https://www.gov.uk/government/publications/vaccination-of-people-working-or-deployed-in-care-homes-operational-guidance/coronavirus-covid-19-vaccination-of-people-working-or-deployed-in-care-homes-operational-guidance

Evidencing your Status

In order to enter a care home, individuals must be able to demonstrate that they have received a complete course of their COVID-19 vaccination, unless exemptions apply. It is the responsibility of the registered person (or those acting on behalf of the registered person) at the care home needs to satisfy themselves of the identity of the person entering the care home and their proof of vaccination.

NHSX is considering how the NHS COVID Pass service could be used to support registered persons and staff to check and demonstrate vaccination status. In the meantime, individuals can choose to use the existing NHS COVID Pass service to show the registered person their vaccination status. There is further specific detail about this in the Guidance (see the link above).

Guidance on Medical Exemptions

It is the medical exemptions, the process around the extended deadlines and what happens in relation to a dismissal if the employee is not medically exempt and refuses to be vaccinated that creates a real area of confusion as the Guidance provided is not explicitly clear. As such, we have been helping our clients to navigate this area carefully but with clear commercial advice, should you require any assistance or have any queries, please get in touch.

There are a range of circumstances in which an exemption may be granted which will reflect the Green Book on Immunisation against infectious disease, chapter 14a and clinical advice from the Joint Committee of Vaccination and Immunisation (JCVI), link below.

From 1 October 2021, individuals are able to apply formally for a medical exemption.

Guidance is available on temporary medical exemptions for COVID-19 vaccination of people working or deployed in care homes. https://www.gov.uk/government/publications/temporary-medical-exemptions-for-covid-19-vaccination-of-people-working-or-deployed-in-care-homes

Currently up until 24 December 2021 an individual can use the Government’s self-certification form to confirm that they are exempt from having the vaccine. This allows them until 31 March 2022 to either have both vaccines or arrange to formalise their exemption into their COVID PASS.

The possible reasons for exemptions are limited. Examples that might be reasons for a medical exemption are:

• people receiving end of life care where vaccination is not in the person’s best interests
• people with learning disabilities or autistic individuals, or people with a combination of impairments where vaccination cannot be provided through reasonable adjustments
• a person with severe allergies to all currently available vaccines
• those who have had an adverse reaction to the first dose (for example, myocarditis)

Other medical conditions could also allow you to get a medical exemption.

Short-term exemptions will also be available for those with short-term medical conditions and as an option that some pregnant women may choose to take.

Pregnant women can alternatively use MAT B1 certificates to show their COVID status, if they choose to use a medical exemption. Pregnant women do not need to apply for a medical exemption NHS COVID Pass if they have a MAT B1 certificate. For pregnant women the exemption will expire 16 weeks post-partum. This will allow them to become fully vaccinated after birth.

What if an individual believes they may be medically exempt 

The first step is to contact the NHS COVID Pass service on 119 to ask for an NHS COVID Pass medical exemptions application form. They will then take the individual through the process. If successful an individual’s status will be formally updated.

All exemptions must be formally approved and will be confirmed by the individual’s doctor, specialist clinician or midwife. If approved, a NHS COVID Pass can then be used to prove the individual’s status. The domestic NHS COVID Pass will look and work the same for people with medical exemptions as it will for people who are fully vaccinated. The pass will not show that the individual has a medical exemption.

The individual will also be sent a confirmation letter which proves that they are unable to get vaccinated. This is useful for individuals as the letter will explain that they are medically unable to get vaccinated, the pass does not.

No Medical Exemption and Not Vaccinated

If an individual is unable to provide proof of vaccination or exemption, then their manager should explore all options available in regard to other possible roles or assisting the individual in getting the vaccinations depending on the specific reasons.  However, the Guidance and Regulations are clear that failure to comply by either being vaccinated or having a medical exemption may provide a fair reason for dismissal and it is recommended that notice pay is paid.

It is our view that although the Guidance appears to suggest that this would be an SOSR dismissal there may be grounds for the doctrine of Frustration to apply, removing the requirement on the company to pay notice pay. This point has not yet been tested in a court of Tribunal yet; however, we think it very likely that it will be.

Related Links:

chapter 14a and clinical advice from the Joint Committee of Vaccination and Immunisation – https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1040677/Greenbook-chapter-14a-14Dec21.pdf

Medical Exemption Self Certification Form – https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1039428/self-certification-form-medical-exemptions.pdf

COVID 19: medical exemptions proving you are unable to get vaccinated  https://www.gov.uk/guidance/covid-19-medical-exemptions-proving-you-are-unable-to-get-vaccinated

Claire Helling, Senior Solicitor