What is ‘Vaccination as a Condition of Deployment’?
In late 2021, new regulations were agreed by parliament making it unlawful for an employer delivering CQC regulated activities, to deploy an unvaccinated worker in a face-to-face role from 1st April 2022. In the NHS, these new rules are commonly referred to as Vaccination as a condition of deployment (VCOD).
Unvaccinated staff will have had to have their first dose by the 3rd February 2022 in order to be fully vaccinated by the 1st April 2022.
What is a CQC-regulated activity?
This covers quite a lot of things like all NHS patient services, personal care in the home and in care homes whether public or private.
Anyone likely to interact with vulnerable people receiving care in health and social care settings including, but not limited to, hospitals, GP practices and also in a person’s home are in scope.
There is an exemption for Shared Lives carers, where the carer lives with the care recipient.
What advice has been issued for the NHS?
In late 2021, NHS England published “Vaccination as a Condition of Deployment (VCOD) for Healthcare Workers. Phase 1 – Planning and preparation” guidance which UNISON has contributed to through the NHS Social Partnership Forum.
In early 2022, NHS England published further “Vaccination as a Condition of Deployment (VCOD) for Healthcare Workers. Phase 2 – VCOD Implementation” guidance
Phase 1 sets out plans and provides resources to increase vaccination rates in preparation for phase 2.
Phase 2 sets out the formal steps that should be considered when implementing the regulations, including redesigning roles, redeployment and dismissal for those who remain unvaccinated after 31 March 2022.
UNISON VCOD guidance for branches is now available.
Who is ‘in scope’ for the vaccine regulations?
The regulations will apply where a regulated activity is delivered through substantive, seconded or fixed-term staff, bank and agency workers, contractors, volunteers, locums, honorary contract-holders, students or trainees, or any other type of worker involved in the provision of a CQC regulated activity and who has direct, face to face contact with patients or service-users.
How is vaccinated defined?
Vaccinated is defined as a “complete course of a Medicines and Healthcare products Regulatory Agency (MHRA) approved COVID-19 vaccine”. This does not currently include the booster jab.
How do people evidence that they are fully vaccinated?
The NHS Phase 1 guidance lists the following recognised evidence of COVID-19 vaccination
- The NHS COVID pass, or equivalent from NHS Scotland, NHS Wales or the Department of Health in Northern Ireland; or
- The EU Digital COVID Certificate; or
- The Centres for Disease Control and Prevention vaccination card; or
- A certificate in English, French or Spanish issued by the competent health authority which contains:
- the individuals full name
- the individuals date of birth
- the name and manufacturer of the vaccine that the individual received
- the date that the individual received each dose of the vaccine
- details of either the identity of the issuer of the certificate or the country of vaccination, or both.
NHS appointment cards cannot be used as proof of vaccination status.
When did these changes come into force?
Parliament passed the new regulations in late 2021 and they came into effect from 6th January 2022. There is a 12 week grace period to allow employers to comply and people to get vaccinated. To be fully vaccinated (first two doses of an approved COVID-19 vaccine) by 1st April 2022, unvaccinated people will need to have had their first dose by 3 February 2022.
Will there be any exemptions?
Yes, there will be some limited exemptions. These include those under 18, those clinically exempt, those taking part in a COVID trial, those without face-to-face contact and those providing care as part of a shared lives agreement.
What about making flu vaccinations compulsory?
Making flu vaccines compulsory was dropped following the consultation, although this will be kept under review by the government. Employers will continue to promote flu vaccinations to their staff.
What will happen if I don’t have my COVID vaccine?
The new regulations mean vaccination will be a condition of deployment, effectively making it unlawful for employers to deploy an unvaccinated worker (without an allowable exemption) in a face-to-face role. New guidance for employers emphasises making all efforts to persuade staff to have the vaccine, redesign roles or look at redeployment options away from direct face-to-face roles.
However, where these are not possible, employers may have no choice but to dismiss people who continue to refuse the vaccine, without an allowable exemption, by 1 April 2022.
What is UNISON’s stance on vaccines?
UNISON supports vaccination in health and social care. The vaccine is safe, and we encourage all members who do not have a medical exemption to get their jab. But vaccination should be your decision and the UK government should promote persuasion and reassurance. We have made arguments that this will result in people leaving health and care jobs, putting pressure on already stretched services. UNISON remains extremely concerned about the impact that the VCOD policy will have on numbers of staff leaving the NHS.
We have raised, and continue to raise, these concerns with policy makers and politicians.
What is UNISON doing now?
UNISON was clear in our consultation response and announcements that we think this decision is a sledgehammer approach that will do more harm than good. We have raised significant concerns about the impact on services in the event of staff leaving or being dismissed for non-compliance with the new regulations.
However, now the new legislation is into force, we need to support our branches to work with employers to ensure fair and consistent treatment of workers when complying with the requirements set out in the regulations.
What is UNISON’s advice?
UNISON has produced advice for health branches supporting NHS members with this new policy in addition to general advice to branches about ‘Bargaining over COVID-19 vaccination status requirements in the workplace’.
The new NHS guidance means employers are expected to work in partnership on the impact of the VCOD policy, including working with health and safety representatives on risk assessments. UNISON’s role is to represent members through the processes, to ensure staff can make their case and seek consistent and fair outcomes.
UNISON cannot promise legal outcomes as these new regulations are untested in the courts.
UNISON branches can also support members with:
- getting access to information to support their decision making – for example, accessing occupational health or other medical advice on exemptions or to overcome hesitancy
- discussions with employers about whether roles are in scope of the regulations
- making their case to their employer through the formal processes including making suggestions on potential adjustments to their current role or redeployment options
- understanding the impact of the vaccination policy
When should employers be holding formal meetings with staff?
The NHS England guidance recommends that formal conversations start from 6 January 2022 with final formal processes starting from 4 February 2022. The aim is still to increase vaccination uptake, thereby avoiding a dismissal, whilst also looking at job redesign or deployment options for those who remain unvaccinated.
How can I find out whether my role in ‘in scope’?
It is very difficult to give general advice on whether a role is ‘in scope’. There is a flow chart and examples in the NHS England Phase 1 guidance to help local decision-making. The first question is whether the person is deployed for the provision of a CQC regulated activity (including non-clinical activity). The next question is whether the person has face-to-face contact with patients or service users in their role, including entering areas which are utilised for the provision of a CQC-regulated activity which may result in incidental face to face contact with patients or service users.
Some employers are taking an ‘all roles in scope’ position. The problem with generalising is that it limits the ability of employers to redeploy staff into non face-to-face roles. It is also outside of the scope of the regulations and could affect employers’ decisions to dismiss staff who continue to remain unvaccinated.
I am a student; how does this affect me?
Students who are over 18 and on a placement in England which involves face-to-face contact with patients and/or service users will need to be vaccinated unless they have one of the accepted exemptions. Supporting students and increasing vaccination is a joint responsibility between the educational provider and the placement provider. HEE are providing some FAQs and we will link them here when published.
What should people do if they need more help with decisions around vaccines?
Employers should be providing staff with the latest materials and advice about the vaccine. This could be through discussions with line managers and/or occupational health. Conversations should be supportive, aiming to overcome vaccine hesitancy, but also honest about the possible implications of continuing to refuse the vaccine.
What about the equality impact of this policy?
The Department for Health and Social Care completed an Equality Impact Assessment (EIA) on the potential impact of the policy on people with protected characteristics.
Local EIAs should be completed to consider and understand the likely impact of the regulations on staff with protected characteristics. Employers will need to have due regard to the potential risks and challenges of decisions and actions associated with making vaccinations a condition of employment.
Working in partnership with Equality, Diversity and Inclusion (EDI) colleagues, local EDI staff network leads may be able to provide specialist advice on the potential impact and mitigations associated with staff groups and guidance on targeted approaches with groups in which vaccination uptake is low.
My employer is saying I must have the vaccine now or face dismissal, what should I do?
The new regulations take full force from 1 April 2022 giving time for people to get fully vaccinated. 3rd February 2022 is the last date by which someone should have their first dose to receive their second dose by 31 March 2022. Your employer should be using all efforts to give you clear information about the vaccine and continue to use persuasion and encouragement. Your employers should be honest, non-judgemental and open with you about the consequences of continuing to refuse the vaccine. They should talk to you about the options available to them, the limitations to what might be achieved and the reality that this could ultimately lead to a dismissal.
You should report any bullying or intimidation to your UNISON branch and/or employer.
From 1 April 2022, it may be unlawful to deploy you in your current role. If alternative arrangements could not be found you may face dismissal from your current role. You should speak to your UNISON representative in advance of a dismissal.
Should I engage with my employers’ processes?
The NHS guidance sets out mutual responsibilities around the redeployment processes which involve organisations providing support and workers engaging with the processes, including letting managers know in the event of declining a redeployment option. Failure to engage in the process will mean your employer may need to make a decision on your employment without taking on board your views.
What support is available?
Employers are expected to offer support for staff such as interview skills workshops, psychological, health and wellbeing services and reasonable paid time off to attend interviews. NHS Support Available for our NHS People https://www.england.nhs.uk/supporting-our-nhs-people/support-now/
UNISON There for You https://www.unison.org.uk/get-help/services-support/there-for-you/
You can also read further FAQs from NHS England here https://www.england.nhs.uk/coronavirus/wp-content/uploads/sites/52/2022/01/C1547-vcod-faqs.pdf