COVID Vaccination Status: February 2022 update
As detailed in my previous article, the Covid-19 vaccinations became mandatory for all those working in care homes on 11 November 2021, in accordance with the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (Covid Regulations).
The aim of this article is to provide further guidance on medical exemptions and acceptable proof of Covid-19 vaccination status. This article also touches on the announcement that the Covid-19 vaccination will become mandatory for the wider health and social care settings.
Update on care homes
Since 11 November 2021, care homes must not admit any person, into the premises unless they are double vaccinated or cannot receive the vaccine due to a medical exemption. Details of whom the Covid Regulations do not apply can be found in my previous article.
The protected characteristics provided by the Equality Act 2010 such as religious or philosophical beliefs will not make a person exempt from the statutory requirement to have the vaccine and only medical exemptions, participation in Covid-19 trials or being under the age of 18 are exemptions from the Covid Regulations.
What then constitutes a medical exemption?
In addition to a medical history of anaphylaxis associated with any of the ingredients in the Covid-19 vaccine in accordance with Green Book, the government has provided further guidance (Guidance) on medical exemptions.
The Guidance states that reasons for medical exemptions are limited, but offers an indicative list of examples of what could be deemed as a medical exemption, including:
- Those receiving end of life care where vaccination is not in their best interests;
- Those with learning disabilities, autistic individuals or those with a combination of impairments where vaccination cannot be administered through reasonable adjustments;
- Those with severe allergies to all currently available vaccines;
- Those who have had an adverse reaction to the first dose; and
- Short-term medical conditions (such as pregnancy) can provide temporary exemptions.
Despite stating that medical exemptions will be limited, the Guidance submits that there are additional medical conditions that could constitute a medical exemption, which is explored further below.
Despite the government’s advisers and researchers deeming the Covid-19 vaccination to be safe for pregnant women and recommended that pregnant women get vaccinated against Covid-19, short-term exemptions will be available for pregnant women. Exemptions expire 16 weeks post-partum to allow enough time to become fully vaccinated after giving birth.
Acceptable proof of Covid-19 vaccination
Covid-19 vaccination status can be evidenced using the NHS COVID Pass service which is accessible in the following three ways:
- the NHS App
- the NHS website – NHS.uk
- the NHS COVID Pass letter
The paper version of the pass will be available soon. Please note that the NHS appointment card and stamps cannot be used as proof of vaccination status.
Temporary proof of being medically exempt
Until 31 March 2022, it is possible for carers to self-certify that they are medically exempt using the government’s self-certification form. However, until 31 March 2022, businesses can decide whether to allow in people who self-declare that they are medically exempt and it is up to the business/care home whether they choose to use the NHS COVID Pass as the only acceptable form of evidence.
This does not apply to pregnant women, who can use their MAT B1 certificates to show their Covid-19 vaccination status.
NHS COVID Pass medical exemptions
From 1 April 2022, the NHS COVID Pass will be the only acceptable form of proof of Covid-19 vaccination status (apart from pregnancy exemptions). Medical exemption NHS COVID Passes will appear and work the same as they will for people who are fully vaccinated and will not display the fact that there is a medical exemption.
All medical exemptions must be confirmed by a doctor, specialist or midwife.
The Guidance provides comprehensive details on how to apply for and receive the NHS COVID Pass medical exemption. To summarise;
- Phone the NHS COVID Pass service on 119 and request an NHS COVID Pass medical exemptions application form.
- If eligible, an application form will be sent by post.
- Send the application form to the GP or relevant clinician stated on the form.
- Application results are usually provided within 2 to 3 weeks after applying. If successful you can use the domestic NHS COVID Pass.
- The decision is final with no right to appeal.
Mandatory vaccination for all workers in the health and social care sector
It has been announced that the Covid-19 vaccine will become mandatory for all staff that provide services that are regulated by the Care Quality Commission and have face-to-face contact with service users. The projected date for this to come into force is 1 April 2022 and it is estimated that more than 208,000 workers will be affected consisting of over 103,000 staff in the health service and over 105,000 domiciliary care workers in England who remain unvaccinated.
Roles affected include domiciliary carers, frontline care staff, doctors, care assistants, nurses, paramedics, dentists, receptionists, clerks, porters, cleaners and volunteers. Although at present the legislation has not yet been drafted, exemptions to the mandatory vaccination for those who have face-to-face interactions with service users will likely be the same as provided in the Covid Regulations for those working in care homes. Being those medically exempt, under 18 or taking part in a Covid-19 trial.
Procedure for dismissal
In the event that dismissal is necessary, because of the current Covid Regulations or due to the impending legislation, employers must ensure that they still act reasonably and fairly when dismissing staff. Employers must ensure that they follow a fair procedure and act reasonably in dismissing the staff. Examples of a fair procedure include warning the staff member of the risk of dismissal, allowing them to be accompanied at any meeting by a trade union representative or work colleague, and also applying the same approach consistently amongst all staff where relevant.
Employers should also ensure that staff are given the greater of contractual or minimum statutory notice (or payment in lieu of notice if the contract of employment contains the relevant clause). Statutory notice is calculated as one week’s notice between one month and two years, and one week’s notice for each additional year over two years up to a maximum of 12 years/12 weeks’ notice. Failure to get vaccinated will not amount to gross misconduct and therefore employees must still be given notice.
As the proposed date for wider mandatory Covid-19 vaccination is 1 April 2022 in the wider health and care sector, there is plenty of time for staff to become vaccinated or apply for an exemption if eligible. We suggest discussions start now regarding the impending legislation to determine whether staff may be at risk of dismissal and try to encourage them to take the vaccine.
Update: Should the Government reverse their decision in regards to mandatory Covid-19 vaccines for health and social care workers, we will provide you with a further update. Hopefully, the government will confirm this position within the next couple of days in light of the impending deadline.
At GA Solicitors we have significant experience in advising those in the care sector and we actively encourage employers and employees who will be affected by the proposed legislation to get in touch sooner rather than later. If you’re looking for more information on vaccination status and how this will affect you, you can email me directly via kayleigh.arthurs@GAsolicitors.com or simply call the employment team on 01752 203500.