What now: Vaccination as a Condition of Deployment
Yesterday evening, Sajid Javid announced a reversal of government policy to implement mandatory vaccinations throughout much of the health and social care sectors. He was explicit that he was:
“announcing that we will launch a consultation on ending Vaccination as a Condition of Deployment in health and all social care settings”
We anticipate that this means that the new 2022 Regulations imposing mandatory vaccinations in the CQC regulated parts of the health and social care sectors as well as the 2021 Regulations requiring vaccination to work in/enter a care home are both subject to that consultation.
Currently, the 2021 (Care Home) Regulations are and remain in place and the 2022 (new and wider VCoD) Regulations come into place on 1 April. They cannot simply be revoked by the announcement.
The Secretary of State has relied on the powers under sections 20(1) to (3) and (5) of the Health and Social Care Act 2008 to make the regulations imposing the VCoD requirements, and will rely on the same powers to repeal these requirements. These regulations concern the requirements on those carrying out regulated activities.
Section 162(3)(b) of the HSCA 2008 requires that for regulations to be made or altered under section 20, there must be a positive resolution of each House of Parliament. The reason for this, under HSCA 2008, is that the contravention of regulations made under section 20 can be an offence punishable by a fine. As such Parliament has, as is quite common for such provisions, required its consent to create or abolish criminal offences.
Section 20(8) of the Act also requires the Secretary of State to consult “such persons as the Secretary of State considers appropriate” before making such regulations, unless the regulations do not effect substantial change. It would be a difficult argument to make that the introduction or removal of these requirements do not amount to a “substantial change”.
The procedure in Parliament means that a draft instrument is laid before each House, with a motion to approve. The draft instrument as presented cannot be amended, but can be rejected. We await the draft instrument to see what the detail of the repeal will mean.
Guidance
NHS England/Improvement have already issued an update and requested:
“This change in Government policy means we request that employers do not serve notice of termination to employees affected by the VCOD regulations”
There is not yet any central guidance to the social care sector.
What Now?
As both the Care Home and new VCoD Regulations remain in place, we recommend that employers in the health and social care sectors continue to recruit new staff on the basis that mandatory COVID vaccination is currently and may be required.
For those staff who are subject to consultation about their vaccination status (potentially unvaccinated), we recommend that those meetings are paused pending the outcome of the government consultation and proposed repeal. Currently we envisage this will likely be a pause until at least mid February 2022.
Issues may arise out of or related to the steps already taken to address VCoD requirements, and employers may need to consider such issues individually.
For organisations liaising with their contractors to ensure compliance by staff not directly employed, we also recommend that those steps are paused.
Once we know the nature and extent of any repeal or changes to the Regulations, we can then judge how to proceed.