Coronavirus (COVID-19) vaccination as a condition of deployment for the delivery of CQC-regulated activities in wider adult social care settings

Overview

On 14 December 2021 Parliament agreed regulations, which were made on 6 January 2022, which extend vaccination as a condition of deployment beyond residential care settings to any other Care Quality Commission (CQC) regulated activity in health and social care, subject to certain exemptions and conditions. This guidance relates to the way these regulations apply in wider adult social care settings, including home (domiciliary) care, extra-care housing and supported living. The regulations to which this guidance relates will come into force on 1 April 2022. In advance of this date, there is a 12-week grace period to allow people sufficient time to be vaccinated.

Throughout the coronavirus (COVID-19) pandemic, people working in the adult social care sector have done a phenomenal job to support and protect those most at risk from COVID-19. Right across the sector, people have risen to this unprecedented challenge and gone above and beyond the call of duty to keep those they care for safe.

Making COVID-19 vaccination a condition of deployment for people providing direct, face to face CQC-regulated activities is intended to:

• protect those people receiving care and support and
• reduce the spread of COVID-19 in adult social care settings, including in people’s own homes

The regulations mean that where a registered person employs or otherwise engages someone to provide direct, face to face CQC-regulated social care activity, the registered person will need to obtain evidence that the individual:

• meets the vaccination requirements set out in the regulations
• is medically exempt, or
• is covered by certain other exceptions

This guidance is aimed at service providers, CQC registered persons, local authorities, people who are employed or otherwise engaged to provide CQC-regulated social care activity in settings other than care homes, and people who receive care and support services in these settings.

It includes further information about what the regulations mean for wider social care settings, including where and how they apply. The information set out below is for guidance only. The legal position in respect of the requirements under the regulations can only be assessed by reference to the specific circumstances that apply. Care providers should consider taking their own independent legal advice.

This guidance forms part of a group of guidance relating to vaccination as a condition of deployment: further information is available about vaccination as a condition of deployment in care homes which has recently been updated, and NHS England and Improvement has also issued guidance with information about vaccination as a condition of deployment in healthcare.

This policy and guidance will continue to be kept under review and these regulations will be amended if necessary, to ensure the safety of the most at-risk people in our society.

The importance of vaccination

Over the last year and a half, COVID-19 has sadly taken many thousands of lives, in particular among older people, those with underlying health conditions and those who need CQC-regulated care and support.

While effective and appropriate use of infection prevention and control (IPC) such as personal protective equipment (PPE) and routine testing continues to play a role in reducing the transmission of COVID-19, vaccines are making a crucial difference: saving the lives of people receiving care and support, and of those in the social care workforce.

Booster doses are not currently included in the regulations. We recognise that there is increasing evidence with respect to waning immunity and the importance of booster vaccines in “topping up” protection. As such, government will continue to review the scientific advice and, if deemed necessary, amend the regulations to include booster vaccines. Until such time, all individuals in the care sector are encouraged to take up the booster, if eligible, in line with national public health advice.

Where to find information about the COVID-19 vaccines

Vaccinations can be booked online through the national booking service or by ringing 119. It is also possible to visit one of hundreds of walk-in centres across the country without the need to book in advance, and where social care workers can access priority queuing. Find your nearest centre.

The Department of Health and Social Care has produced a toolkit of resources that is tailored for the adult social care sector. This is available online at Public Health England’s (now part of the UK Health Security Agency) campaign resource centre: Vaccine communications toolkit for adult social care.

There are also wider toolkits available online aimed at encouraging those working in the care sector to get the flu vaccine and COVID-19 booster:

Through having conversations with trusted peers or medical professionals about concerns about the COVID-19 vaccine, a real difference can be made. There are a range of published resources with information about the vaccine that can be used to support those difficult conversations, all of which are available in 19 different languages:

More information on the programme of work underway to drive COVID-19 vaccine uptake, including actions to improve access and to address the concerns of those who may be hesitant to receive the vaccine, is set out in the UK COVID-19 vaccination uptake plan published on 13 February 2021. More recent letters have been issued to the sector on the accelerated booster rollout, vaccine information for agency staff, and the priority queuing policy for social care workers and unpaid carers at vaccination centres.

The regulations in outline

The Health and Social Care Act (2008) (Regulated Activities) (Amendment) (Coronavirus) (No.2) Regulations 2022, made on 6 January 2022, amend the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 for the purposes of preventing, detecting, and controlling the spread of infections, specifically in response to the effects of the coronavirus (COVID-19) pandemic.

These new, amended regulations (which are referred to as ‘the regulations’ throughout this guidance) provide that:

As explained earlier in the overview, this guidance sets out what the regulations mean for wider social care settings and forms part of a group of guidance relating to vaccination as a condition of deployment. There is further guidance available about what the regulations mean for care homes, which has recently been updated, and about what the regulations mean for healthcare settings.

For the purpose of this guidance, the regulations:

• apply to all CQC registered persons (referred to as ‘registered persons’ in this guidance) in respect of any CQC-regulated activity, other than the provision of accommodation for persons requiring nursing or personal care in a care home (this is covered by a separate guidance which is linked above). In this guidance, this means those adult social care activities regulated by the CQC which are provided in people’s own homes, most often by home (domiciliary) care, supported living and extra care housing services
• will not apply if the person employed or otherwise engaged in respect of the CQC-regulated activity will not have direct, face to face contact with people receiving care and support
• include specific exemptions and exceptions, which are set out in more detail later in this guidance
• also applies to people who live in Scotland, Wales or Northern Ireland, but who are employed or otherwise engaged in respect of a CQC-regulated activity in England

The duties imposed by the regulations set out in this guidance apply to the CQC registered person rather than on the people providing care and support. Under the regulations, it is therefore the registered person’s duty to ensure that, from 1 April 2022, anyone they employ or otherwise engage to provide direct, face to face CQC-regulated activity has provided evidence of satisfying the vaccination requirements, as set out in the regulations, or that they are exempt or covered by other exceptions.

The requirement forms part of the CQC’s fundamental standards and will be monitored and enforced in appropriate cases by the CQC.

Definitions used in this guidance

This guidance will refer to several terms which may require further explanation to limit ambiguity and to make it easier to use. These definitions aim to simplify the text used in the rest of the guidance.

The regulations

The term ‘the regulations’ within this guidance is described above.

Registered person

‘Registered person’ within this guidance refers to the person (individual, partnership or organisation) registered with the CQC as being responsible for the delivery and quality of a service providing CQC-regulated activity in England. This term should not be confused with other usages of the term ‘registered person’ set out in other publications. More information about CQC registration is available on their website.

CQC-regulated activity

‘CQC-regulated activity’ within this guidance refers to any of the listed regulated activities set out on the CQC’s website. This guidance does not relate to the provision of accommodation for persons requiring nursing or personal care in a care home.

While the CQC does regulate some activities when carried out remotely, the regulations covered by this guidance only apply to direct, face to face provision.

Employed or engaged

‘Employed or engaged’ within this guidance refers to anyone providing CQC-regulated activity (as defined above) on behalf of a registered person (as defined above). This could therefore include someone who is a volunteer or on placement with a CQC registered organisation but is not formally employed or contracted by the organisation, and agency workers, provided that they are delivering a CQC-regulated activity.

People receiving care and support

‘People receiving care and support’ will be used throughout this guidance as a substitute for the term ‘service users’, which is used in the regulations.

Vaccination requirements

The term ‘vaccination requirements’ within this guidance is described in more detail in the ‘Vaccination requirements under the regulations’ section.

Other exceptions

The term ‘other exceptions’ within this guidance is used to refer to people who, under the regulations, are not required to provide evidence either that they satisfy the vaccination requirements or that they are medically exempt. These are:

• individuals who are participating or have participated in specific clinical trials (these people must instead provide evidence of their participation)
• individuals under the age of 18

More information about other exceptions can be found in the code of practice on the prevention and control of infections, which is currently being updated and will be published as soon as possible.

Wider care settings

The term ‘wider care settings’ will be used throughout this guidance in reference to non-residential social care settings, that are also not healthcare settings. This therefore includes home (domiciliary) care services, supported living and extra care housing, but is not an exhaustive list.

Top-up dose

If you’ve had a type of COVID-19 vaccination that’s not authorised in the UK, you can get a UK-authorised vaccination so that you meet UK vaccination requirements. In this guidance, we call that a ‘top-up dose’.

Booster

If you’ve had a complete course of UK-authorised vaccine, any additional dose of authorised vaccine you get is called a ‘booster’ in this guidance.

Key dates

The relevant provision of the regulations for the purposes of this guidance will come into force on 1 April 2022. In advance of this date, there is a 12-week grace period to give all those affected sufficient time be vaccinated. Under current vaccination guidance, 8 weeks are required between the first and second vaccine dose.

Diagram of timescales and key dates in the implementation of the regulations

*The date 1 April 2022 is applicable to most staff, but there are exceptions; please see ‘the Vaccination requirements under the regulations’ section of this guidance for more information.

• 6 January 2022 – this is when the grace period starts
• 3 February 2022 – this is the last date for any unvaccinated individuals in scope of the regulations who are already employed or engaged by a registered person, and who are not medically exempt or covered by other exceptions or other options, such as being otherwise vaccinated against coronavirus (COVID-19), to get their first dose of an authorised vaccine, in order to satisfy the vaccination requirements set out in the regulations by the time they come into force. This milestone assumes an 8-week interval between first and second doses. Vaccination date requirements for new starters can be found later in this guidance
• 1 April 2022 – regulations come into force

Where and how the regulations apply

The regulations require that all CQC registered persons only employ or engage someone to provide CQC-regulated activity if they have provided evidence of satisfying the vaccination requirements, or that they are exempt or covered by other exceptions. Please see the ‘Definitions’ section above in this guidance which explains what is meant by these terms.

CQC-regulated activity which is in scope of the regulations includes activities provided by people employed or engaged by a registered person in people’s own homes, most often by home (domiciliary) care, supported living and extra care housing services.

In these wider care settings, the CQC’s regulatory approach relates to the activity, and not the setting in which it is being provided. The CQC considers that the regulated activities carried out in wider social care settings, and which are covered in this guidance, would include the provision of personal care and nursing care, often in the place where people receiving this care and support live. The CQC also regulates the treatment of disease, disorder and injury. These activities may also take place in places where people live, such as in care homes, however such activity is not referenced in this guidance. There is separate guidance available on how the regulations apply to care homes and to wider healthcare settings.

Activities which are not CQC-regulated, for example the work of personal assistants, or services provided at day centres, are not within the scope of the regulations.
In addition, the regulations specifically exclude CQC-regulated activity provided under a shared lives agreement.

People who are in scope of the regulations

People who are in scope include:

• people working as employees, contractors, agency workers, students, or volunteers, or as any other type of worker, provided that they are providing direct, face to face CQC-regulated activity on behalf of a registered person, subject to certain exemptions and conditions set out in this guidance
• this applies whether or not the CQC-regulated activity is their primary role, their full-time role, or something they only do occasionally
• people who live in Scotland, Wales or Northern Ireland but provide CQC-regulated activity while working in England

Flowchart summarising how the regulations apply in wider social care settings

Text alternative to the flowchart on how the regulations apply in wider social care

This flowchart intends to help the reader to consider whether a specific individual is in scope of the regulations as set out in this guidance.

Question: is the individual employed or engaged by a CQC registered organisation?

If no: the individual is not in scope of the regulations. This could include individuals such as hairdressers or personal assistants.

If yes: continue to the next question.

Question: is the organisation registered to provide anything other than the regulated activity of accommodation for people who require nursing or personal care?

If no: separate guidance which has recently been amended is available on how the regulations apply to care homes. Shared lives schemes are not in scope of the regulations.

If yes: continue to the next question.

Question: is the individual employed or engaged to provide CQC-regulated activity, or might be required to provide such activity?

If no: the individual is not in scope of the regulations, as they are not providing CQC-regulated activity. This could include individuals employed to work in an organisation’s head office, individuals who provide cleaning services within an extra care setting, or individuals who work in day centres.

If yes: continue to the next question.

Question: is the individual employed to provide a CQC-regulated activity conducted direct and face to face?

If no: the individual is not in scope of the regulations, as only direct, face to face activity is in scope. This could include CQC-regulated activity offered by telephone or virtually.

If yes: continue to the next question.

Question: is the individual who is employed or engaged medically exempt, or covered by other exceptions (under 18, or a COVID-19 vaccination clinical trial participant)?

If yes: refer to the relevant section of this guidance for information on what evidence might be required for this individual.

If no: the individual is in scope of the regulations. Refer to the ‘Vaccination requirements’ section of this guidance to understand how the individual would need to demonstrate that they satisfy the requirements.

The vaccination requirements under the regulations

The regulations require that all registered persons must ensure that anyone they employ or engage to provide direct, face to face CQC-regulated activity has provided evidence that they have satisfied the vaccination requirements, or that they are exempt or covered by other exceptions. Please see the ‘Definitions’ section above in this guidance which explains what is meant by these terms.

In order to meet the requirements of the regulations, the registered person must ensure that a person is only employed or engaged to provide direct, face to face CQC-regulated activity, if they meet one of four conditions set out below. Temporary medical exemptions may apply where a person has recently tested positive for COVID-19; please refer to the ‘Temporary medical exemptions’ section of this guidance for further information.

Condition 1

That they have provided evidence to the registered person of one of the following:

• they have been vaccinated with a complete course of doses of an authorised coronavirus (COVID-19) vaccine (as set out in the regulations and in the code of practice on the prevention and control of infections, which is currently being updated and will be published as soon as possible)
• they are medically exempt (more information about medical exemptions is set out later in this guidance)
• they are participating or have participated in specific clinical trials (more information about clinical trials can be found in the code of practice on the prevention and control of infections, which is currently being updated and will be published as soon as possible)

Condition 2

This condition is applicable to individuals who have been otherwise vaccinated against coronavirus (COVID-19). This means being vaccinated with a vaccine which is not authorised.

Further information about being otherwise vaccinated against coronavirus (COVID-19) will be available in the code of practice on the prevention and control of infections, which is currently being updated and will be published as soon as possible.

Where an individual has received a complete course of a vaccine listed in the table in Schedule 4A to the regulations, that they have provided evidence to the registered person of this vaccination.

Where an individual has been otherwise vaccinated against coronavirus (COVID-19) with a vaccine that is not listed in the table in Schedule 4A to the regulations, or where they have not received the full number of doses specified in that table, that within a period of 10 weeks from the date of that vaccination, they have provided evidence to the registered person that they have satisfied an additional condition – specifically that they have received one of the following:

Condition 3

(This condition is applicable only to new starters who start their employment or engagement with a registered person during the grace period – in other words after 6 January 2022 and before 1 April 2022.)

That they have provided evidence to the registered person that they have been vaccinated with one dose of an authorised vaccine by 1 April 2022, noting that:

• these new starters can be employed or engaged with respect to the regulated activity at any point during the grace period – by 1 April 2022, the registered person must ensure that the new starter has provided evidence that they have received one dose of an authorised vaccine, in order to continue being employed or engaged to provide CQC-regulated activities

• this option only applies for a period of 10 weeks from the date on which that person was vaccinated with their first dose – once this period expires the registered person must then ensure that the new starter has provided evidence that they have satisfied Condition 1 set out above, before allowing that person to continue to be employed or engaged

Condition 4

(This condition is applicable only to new starters who start their employment or engagement with a registered person after the regulations come into force on 1 April 2022.)

That they have provided evidence to the registered person that they have been vaccinated with one dose of an authorised vaccine, at least 21 days before starting their employment or engagement, noting that:

• this option only applies for a period of 10 weeks from the date on which that person was vaccinated – once this period expires the registered person must then ensure that the new starter has provided evidence that they have satisfied Condition 1 set out above, before allowing that individual to continue to be employed or engaged

The table below should be used in conjunction with the above conditions to enhance understanding of the above criteria:

Recognised evidence of COVID-19 vaccination

The following types of evidence can be used to demonstrate an individual’s vaccination status:

• the ‘View COVID-19 records’ function of the domestic NHS COVID Pass. This is accessible within the NHS App and online via the NHS COVID Pass service. If an individual’s vaccination status is not up to date for entering domestic settings such as places/venues in England and therefore they cannot access this record via the domestic NHS COVID Pass, they can access the “View COVID-19 Records” via the travel NHS COVID Pass. Further information about how to access COVID-19 records on these platforms is set out later in this guidance under ‘What the regulations mean for individuals who fall in scope’
• a valid physical travel NHS COVID Pass letter
• equivalent services from NHS Scotland, NHS Wales, or the Department of Health in Northern Ireland
• the EU Digital COVID Certificate
• the Centres for Disease Control and Prevention vaccination card
• a certificate in English, French or Spanish issued by the relevant health authority which contains:
  • the vaccinated person’s full name
  • the vaccinated person’s date of birth
  • the name and manufacturer of the vaccine that the vaccinated person received
  • the date that the vaccinated person received each dose of the vaccine
  • the details of either the identity of the issuer of the certificate or the country or territory of vaccination, or both

Medical exemptions

Vaccination may not be appropriate for some individuals for medical reasons. These people are therefore medically exempt from the requirements under the regulations.

The Department of Health and Social Care considers there are limited possible reasons an exemption may be granted, with all exemptions being assessed by a doctor, specialist clinician or midwife through the process outlined in the link below.

You can see further information on medical exemptions and how to apply for one.

The regulations underpinning this guidance document allow the registered person (as defined earlier in this guidance) to receive and process confidential medical records. The registered person is obliged to abide by GDPR processes (this is described in more detail in the ‘What the regulations mean for registered persons’ section of this guidance).

Temporary medical exemptions

The UK Health Security Agency advises that individuals infected with SARS-CoV-2 (COVID-19 virus) should not receive vaccination until 4 weeks from the date of diagnosis and should therefore defer any COVID-19 vaccination appointments which were scheduled to take place until after this period of time.

For the purposes of the regulations, such individuals may be considered temporarily medically exempt from needing to demonstrate that they have received their first, second or top-up dose of an authorised vaccine during this time. For the purpose of this guidance, this temporary medical exemption will apply for a 28-day (4-week) period from an individual’s first confirmed positive test result, plus an additional 14 days (2 weeks), which individuals can use to satisfy the vaccination requirements. This gives a total of up to 42 days (6 weeks) in which the individual remains temporarily medically exempt.

Temporary medical exemptions on the basis of recent infection with COVID-19 can be evidenced in a different way to other medical exemptions, by providing proof of the positive test result. Temporary medical exemptions for this reason, and the method of providing evidence, will only apply during the 42 day (6 week) period from an individual’s first confirmed positive test result.

Further information about how temporary medical exemptions on the basis of recent infection with COVID-19 will work in practice, including how they relate to the different vaccination requirements under the regulations, will be published in separate guidance.

Pregnant women

The Royal College of Obstetricians and Gynaecologists (RCOG), the Royal College of Midwives (RCM) and the UK Teratology Service all consider COVID-19 vaccination to be safe. They recommend that pregnant women get vaccinated against COVID-19. However, pregnant women are eligible to request short-term medical exemptions from COVID-19 vaccination. This exemption expires 16 weeks after giving birth, allowing women to satisfy the vaccination requirements after birth.

Upon a woman’s return to work after giving birth, the registered person must ensure that she has provided them with evidence that she has satisfied the vaccination requirements set out in the regulations, or that she is exempt or covered by other exceptions. The registered person must ensure that she continues to satisfy the vaccination requirements after her exemption expires (including demonstration of medical exemption or other exception if applicable) to continue providing CQC-regulated activities following its expiry.

A MATB1 certificate can be used to provide evidence of exemption status, up to 16 weeks after giving birth. See more information about the MATB1 certificate.

For further guidance regarding supporting pregnant women in the workplace, please refer to Coronavirus (COVID-19): advice for pregnant employees.

Demonstrating evidence of medical exemption

The following types of evidence can be used to demonstrate that an individual should not be vaccinated for medical reasons:

• the NHS COVID Pass medical exemption confirmation letter – individuals who have a GP in the UK and who are applying for a medically reviewed medical exemption will automatically get the results of their application by post
• a digital or non-digital equivalent from NHS Scotland, NHS Wales or the Department of Health in Northern Ireland
• where the individual is not registered with a GP in the UK, confirmation in writing from the person or professional who is medically responsible for their treatment, or with direct knowledge of their condition, that they should not be vaccinated with an authorised vaccine

All medical exemptions to the vaccination requirements will have to be acquired via one of the options set out above.

Under 18s

Under the regulations, registered persons do not need to check the vaccination or exemption status of anyone under the age of 18.

However, as soon as someone employed or engaged to provide CQC-regulated activity turns 18, the registered person will need to ensure that they have provided evidence that they have satisfied the vaccination requirements, or that they are exempt or covered by other exceptions, in order for them to continue to provide CQC-regulated activity to people receiving care and support.

Skills for Care have further guidance on employing 16 and 17 year olds.

What the regulations mean for registered persons

Overview

From 1 April 2022, registered persons will be responsible for ensuring that they only employ or engage individuals to provide direct, face to face CQC-regulated activity if those individuals have provided evidence that they have satisfied the vaccination requirements set out in the regulations, or that they are either medically exempt or covered by other exceptions. Please see the ‘Definitions’ section above in this guidance which explains what is meant by these terms.

This section aims to give advice to you, as a registered person, on what the regulations will mean for you in practice.

As set out below, under the regulations, you are not required to keep a record of the vaccination or exemption status of your staff. However, you will need to be able to provide assurance that systems and processes are in place to ensure that anyone that you employ or engage who is in scope of the regulations has provided you with evidence of their vaccination or exemption status. The CQC will look for evidence of these systems being in place at inspection (see the section ‘The role of the CQC in assuring these regulations’ in this guidance for more information).

While checks may be undertaken by other members of staff acting under the registered person’s instruction, it is you, as the registered person, who remains legally responsible for compliance with the regulations.

As a registered person, you will need to:

• inform anyone you employ or engage to provide CQC-regulated activity of the scope of the regulations, considering the overall timeline and good employment practice
• check the vaccination or exemption status of staff who are in scope of the regulations; this includes the responsibility for evidence of the vaccination or exemption status of agency workers to have been checked
• ensure that systems and processes are in place to ensure that individuals who are employed or otherwise engaged by you, and who are in scope of the regulations have provided you with evidence that they have satisfied the vaccination requirements, or that they are exempt or covered by other exceptions; please refer to ‘The role of the CQC in assuring these regulations’ section within this guidance for information on what the CQC will look for
• ensure that any records you keep remain in line with General Data Protection Regulation (GDPR) principles (more information is available below in the ‘Record keeping in relation to vaccination or exemption’ section of this guidance)
• ensure you are undertaking appropriate risk assessments where individuals you employ or engage cannot be vaccinated

When deciding how to implement the regulations, you should also refer to the code of practice on the prevention and control of infections, which is currently being updated and will be published as soon as possible.

This section of the guidance also provides wider information and support for registered persons and should be read in conjunction with Annex A which gives advice on good employment practice.

Checking vaccination or exemption status as a registered person

If you are a registered person (or acting on their behalf), you will have to check that anyone you employ or engage who is in scope of the regulations has provided evidence of satisfying the vaccination requirements, or that they are exempt or covered by other exceptions. Information on where and how the regulations apply are set out earlier in this guidance.

It will be up to you, the registered person (or those acting on your behalf), to identify the most appropriate procedures to check vaccination and exemption status of individuals.
More information about the evidence that the Department of Health and Social Care considers acceptable will be set out in the code of practice on the prevention and control of infections, which is currently being updated and will be published as soon as possible. You may want to consider the below:

• there are different vaccination requirements under the regulations for individuals vaccinated with an authorised vaccine and those otherwise vaccinated against coronavirus (COVID-19). Some individuals vaccinated outside of the UK may not have received what the regulations define as an authorised vaccine
• there are different vaccination requirements under the regulations for individuals who are already employed or engaged by you, individuals who start their employment or are first engaged by you during the grace period, and individuals who will be new starters starting work on or after the 1 April 2022
• medical exemptions may apply to some of the people you employ or engage, including those who are pregnant. These individuals will need to provide evidence of their medical exemption
• as set out earlier in this guidance, UKHSA advises that individuals infected with SARS-CoV-2 (COVID-19 virus) should not receive vaccination until 4 weeks from the date of diagnosis, and should therefore defer any COVID-19 vaccination appointments which were scheduled to take place until after this period of time. For the purposes of the regulations, such individuals may be considered temporarily medically exempt from needing to demonstrate that they have received their first, second or top-up dose of an authorised vaccine during this time. This temporary medical exemption will apply for a 28-day (4-week) period from an individual’s first confirmed positive test result, plus an additional 14 days (2 weeks) which individuals can use to satisfy the vaccination requirements. As the registered person, you are required to ensure that where an individual you employ or engage to provide CQC regulated activity has this temporary medical exemption, you are provided with evidence that demonstrates this (proof of the individual’s positive test result). In doing this, you may want to take note of the timelines in which the individual needs to defer their vaccination and receive a subsequent dose, to ensure that the individual remains deployable. In practice, temporary medical exemptions will apply differently depending on the individual’s circumstances. To support you in this decision making, further operational guidance on how temporary medical exemptions will apply in practice will also be published
• you will need to see evidence of an individual’s vaccination status, unless medically exempt or covered by other exceptions, for them to continue providing CQC-regulated activities after the 42 days
• anyone employed or engaged by you who is under 18 will not need to provide evidence of their vaccination status or exemption – as soon as they turn 18 you will be required to ensure that they have provided evidence of their vaccination status or exemption
• anyone employed or engaged by you who is participating or has participated in specific clinical trials will need to provide you evidence of their participation – more information about clinical trials can be found in the code of practice on the prevention and control of infections, which is currently being updated and will be published as soon as possible
• the vaccination requirements under the regulations also apply to those who are redeployed and to those whose role changes to include carrying out CQC-regulated activity
• the vaccination requirements under the regulations apply only to people you employ or engage to provide CQC-regulated activity (as defined earlier in this guidance) – as such, individuals on long-term absence from work, such as maternity, shared parental leave, or sickness absence, would not need to provide you with evidence of their vaccination or exemption status unless and until they return to work to provide any such activity (including at any one-off visits or keeping in touch (KIT) days)

There is more information about the vaccination requirements and recognised evidence of COVID-19 vaccination in an earlier section of this guidance.

As a registered person, you should undertake a risk assessment for those who are medically exempt from vaccination or covered by other exceptions, to reduce risk of transmission. This means you should evaluate the potential risk to the spread of COVID-19 caused by unvaccinated (but exempt) workers and identify the level of risk exposure to the individual, other workers, people receiving care and support, and visitors. You could put in place measures to help reduce this risk, which might include a change to their duties where such a change is appropriate. You should also remember that those that are exempt from vaccination may also be in the clinically extremely vulnerable category.

It remains important that all those you employ or engage to provide CQC-regulated activity, including those who satisfy the vaccine requirements, continue to follow infection prevention and control measures, including the correct usage of infection prevention and control measures (such as PPE and testing) to reduce the risk of transmission. Using PPE further limits spread of the virus between social care staff and service users, and further guidance is available:

Record keeping in relation to vaccination or exemption status as a registered person

Under the regulations, as the registered person, you are not required to keep a record of the vaccination or exemption status of your staff.

However, you will need to be able to provide assurance that systems and processes are in place to ensure that anyone that you employ or engage who is in scope of the regulations has provided you with evidence of their vaccination or exemption status. The CQC will look for evidence of these systems being in place at inspection (see the section on ‘The role of the CQC in assuring these regulations’ later in this guidance for more information).

You may choose to make a record of the evidence you have seen, or how evidence was checked, for your own internal staff employment record keeping. This may also include evidence where someone is covered by other exceptions. Where you keep evidence, you must ensure this is done in a way that is consistent with data protection legislation.

Where a person is medically exempt, you are not required to record the medical reason behind exemption.

The Department of Health and Social Care does not consider that letters stating that an individual is exempt for non-medical reasons, for instance letters from trade unions or other non-medical professionals, demonstrate medical exemption. Therefore, the Department of Health and Social Care would not consider that such letters should be used as evidence that the individual has satisfied the vaccination requirements under the regulations. There is more information about ‘Recognised evidence of COVID-19 vaccination’ in an earlier section of this guidance.

Keeping written records and General Data Protection Regulation (GDPR) compliance

The regulations state that, as a registered person, you may process information about COVID-19 vaccination or medical exemption status (including evidence of temporary medical exemption), but this must be done in a way that is consistent with data protection legislation and the need to respect confidentiality.

You should have existing data processing policies as part of your pre-existing data protection obligations, for example around the privacy information you offer to individuals.

Data about vaccination or medical exemptions is health data and therefore special category data for the purposes of the data protection legislation. All existing data protection and privacy documentation and assessments should be reviewed and updated to ensure compliance with the regulations.

Data protection principles

You should, at all times, observe the data protection principles set out within the UK GDPR and the Data Protection Act 2018. These are:

• lawfulness, fairness and transparency
• purpose limitation
• data minimisation
• accuracy
• storage limitation
• security of systems
• accountability

These principles should lie at the heart of your approach to processing personal data. Please refer to the guidance from the Information Commissioner’s Office to ensure you have appropriate lawful basis, technical and security measures in place to protect personal data.

Registered persons must at all times ensure confidentiality of all vaccination and exemption information.

The role of the CQC in assuring these regulations

The requirements, under the regulations, forms part of the fundamental standards and will be monitored and enforced in appropriate cases, by the CQC. This section of the guidance outlines CQC’s approach to registration, ongoing monitoring, enforcement and inspection.

Registration

The CQC will seek assurance that those registering for the first time – or amending their registration with the CQC – have a robust governance process to:

• monitor COVID-19 vaccination and COVID-19 status of staff
• ensure staff maintain an up-to-date COVID-19 vaccination status (by providing guidance and assistance for staff to get vaccinated) and ensure staff maintain up-to-date best IPC practice
• monitor COVID-19 vaccination and COVID-19 status of staff employed or engaged to provide CQC-regulated activity
• where applicable, make reasonable adjustments to ensure people using the service receive safe care and treatment, such as additional IPC measures for those who are exempt from vaccination under the regulations, or covered by other exceptions

For new registration applications the CQC will seek assurance that:

• where they themselves fall in scope of the regulations, the registered person(s) satisfy the vaccination requirements, or that they are exempt or covered by other exceptions
• registered person(s) are aware of their duties in relation to the new regulations regarding COVID-19 vaccination

Ongoing monitoring

The monitoring of compliance with the requirement is the responsibility of the CQC.

The CQC propose to add the following question to the provider information return (PIR) once the regulations are in force:

How are you assured that those you employ and deploy to provide direct, face to face care within your service have had their required vaccinations?

The CQC will also build a similar question into their monitoring approach once this duty is in place. Further information will be provided in due course.

Inspection

On inspection, the CQC will look for evidence to confirm systems and processes are in place to comply with the requirement.

As a registered person (as defined earlier in this guidance), you will not be required to show a record of the evidence itself. You will, however, need to provide assurance that systems and processes are in place to ensure that individuals who are employed or otherwise engaged by you, and who are in scope of the regulations, have provided you with evidence that they have satisfied the vaccination requirements, or that they are exempt or covered by other exceptions.

Such data would constitute special category data, as it relates to health information, and so must be kept securely.

All personal data must be handled in accordance with UK GDPR. This includes providing individuals with privacy information at the stage their data is being collected. Please refer to the guidance from the Information Commissioner’s Office (ICO) to ensure you have appropriate lawful basis, technical and security measures in place to protect personal data.

Enforcement

Any enforcement activity which is generated as a result of non-compliance with the regulations will be undertaken on a proportionate basis and based on the CQC’s assessment of the impact on quality of care and people’s safety, in line with the CQC’s existing enforcement policy. The CQC will decide what action to take based on proportionality and in line with their normal approach to enforcement.

Other support for registered persons

This section outlines the resources that are currently available to support you, as a registered person, in complying with the regulations.

Concerns about staffing levels

Registered persons should already have contingency plans that cover events which may affect the safe running of the service. This would normally include staff shortfalls.

Wherever possible, we would expect you, as the registered person, to take reasonable steps to cover the staff shortfalls themselves in the short term through the use of bank or agency staff. If this option is not available to you, you should flag this with the local authority who may be able to offer or signpost you to sources of assistance.

If you have any concerns that staffing levels will affect your ability to operate the service safely, you are required to notify the CQC under Regulation 18 (2) (g) of the Care Quality Commission (Registration) Regulations 2009: this refers to any event which prevents, or appears to the service provider to be likely to threaten to prevent, the service provider’s ability to continue to carry on the regulated activity safely, or in accordance with the registration requirements – including an insufficient number of suitably qualified, skilled and experienced persons being employed or engaged for the purposes of carrying on the regulated activity.

The CQC has provided further information on statutory notifications.

Resources to support communication with staff to encourage vaccine uptake

A range of resources are available to support you and your staff to have conversations about COVID-19 vaccine safety and efficacy, as well as financial support to access COVID-19 vaccinations. More information and links to these resources can be found in the ‘Why it is important to take up the vaccine’ section of this guidance.

Skills for Care platform

Skills for Care has developed a dedicated one-stop webpage bringing together a range of support, information, and resources to support social care employers to continue to recruit and retain their staff in a challenging environment.

Resources include:

• workforce planning and commissioning
• people performance management
• supervision guide
• wellbeing resources
• values based recruitment and retention resources
• workforce productivity model

Good employment practice

Guidance on good employment practice (which includes information on retention and recruitment, how to engage with the workforce on the requirements under the regulations, information about fair dismissal, redeployment and notice pay, and links to other resources) can be found in Annex A of this guidance.

What the regulations mean for individuals who fall in scope

Overview

From 1 April 2022, registered persons must ensure that they only employ or engage people to provide direct, face to face CQC-regulated activity if they have provided evidence that they have satisfied the vaccination requirements set out in the regulations, or that they are exempt or covered by other exceptions. Please see the ‘Definitions’ section above in this guidance which explains what is meant by these terms.

This section of the guidance gives advice to you, as a person who is employed or engaged to provide such activity, on what this will mean for you in practice.

There is more information about where and how the regulations apply, including who is in scope of the regulations and who is medically exempt, in an earlier section of this guidance.

If you are in scope of the regulations, you will need to:

• provide evidence of your COVID-19 vaccination or medical exemption status when you are asked. Your organisation’s registered person, or someone on their behalf, will come to you to ask for evidence of your COVID-19 vaccination or exemption status
• be aware of what might happen if you cannot evidence your COVID-19 vaccination or exemption status

COVID-19 vaccinations can be booked online through the national booking service or by ringing 119. It is also possible to visit one of hundreds of walk-in centres across the country without the need to book in advance, and where social care workers can access priority queuing. Find your
nearest centre here.

More information about the COVID-19 vaccines is set out in the ‘The importance of vaccination’ section of this guidance.

Demonstrating your vaccination status

NHS App and web-based solution

If you have been vaccinated by the NHS in England, you can choose to demonstrate your COVID-19 vaccination status using the ‘view COVID-19 Records’ function of the domestic NHS COVID Pass.

This is accessible within the NHS App and online NHS COVID Pass service. More information can be found at ‘Getting a digital NHS COVID Pass’. You will need to have or create an NHS Login to use the service.

A step-by-step guide is below:

1. Log onto the NHS App.
2. The first screen is your home screen which will also display your name and date of birth.
3. Click on the ‘Get your NHS COVID Pass’ link; you may need to click ‘Continue’.
4. Select the ‘Domestic’ link.
5. This will bring up the Domestic NHS COVID Pass screen with your name and date of birth, a 2D barcode and a green shimmer ‘valid’ banner; this does not prove your vaccination status under the regulations.
6. Scroll down and select ‘view COVID-19 records’.
7. Your COVID-19 vaccine records will now be displayed for you to show to the registered person.

Those using the online NHS COVID Pass service via the NHS.uk website will see the same information and after logging in can skip straight to step 4.

If your vaccination status is not up to date for domestic settings and you cannot access your COVID-19 records via the domestic NHS COVID Pass, you can access the ‘view COVID-19 Records’ on the travel NHS COVID Pass.

Those taking this route will need to select the ‘travel’ link at step 4 and scroll down to ‘view COVID-19 Records’.

NHS COVID Pass letter

If you cannot apply digitally using the NHS App or online service, or do not have access to the internet, you can ask for a NHS COVID Pass letter to be sent to you by post. You can use this service if the following apply:

• you have received a complete course of doses of an authorised COVID-19 vaccine used in the UK
• you had your COVID-19 vaccination in the UK or certain countries abroad
• you are registered with a GP in England or the Isle of Man

You can request a letter online, or by phone. There are 2 letters – one is for travel abroad and one is for entry to domestic events and venues. You’ll be sent the letters you are eligible for. You may be sent a travel letter, a domestic letter, or both. The letters are valid for 30 days. You should get them within 7 working days of the date you ask for them. You should be prepared to show any letters you receive to a registered person to demonstrate your vaccination status.

You can also apply for an NHS COVID Pass letter if you have a medical exemption from COVID-19 vaccination or testing. You may be able to get a letter if you were vaccinated on a clinical trial. See more information on the NHS COVID Pass letter and how to ask.

If you have been vaccinated in Scotland, Wales or Northern Ireland

If you have been vaccinated in Scotland, Wales or Northern Ireland but work in England, you will be asked to provide evidence of your vaccination status or exemption by the relevant registered person.

If you have been vaccinated in Scotland, you can find information on how to obtain a record of your COVID-19 vaccination status from the nhsinformscot website.

If you have been vaccinated in Wales, you can find information on how to obtain a record of your COVID-19 vaccination status from the Welsh government website.

If you have been vaccinated in Northern Ireland, you can find information on how to obtain a record of your COVID-19 vaccination status on the Northern Ireland Direct website.

If you have been vaccinated outside the UK

If you have been vaccinated against COVID-19 outside the UK you will be required to provide evidence of your vaccination status, and if you have been otherwise vaccinated against COVID-19 you may need to have a “top-up” dose with a UK authorised vaccine. Further information about the vaccination requirements under the regulations is set out in an earlier section of this this guidance.

If you have received COVID-19 vaccinations outside of the UK, you live in England, and you wish to be able to use the NHS COVID Pass service, you can ask to have this added to your NHS vaccination record. You will need to book a face-to-face appointment at selected vaccination centres.

If you participated in certain overseas clinical trials for vaccines against COVID-19, you may fall under other exceptions and will need to instead provide evidence to the registered person of your participation.

More information on being ‘otherwise vaccinated against COVID-19’ and overseas clinical trials can be found in the code of practice on the prevention and control of infections, which is currently being updated and will be published as soon as possible.

If your domestic NHS COVID Pass has been deactivated

The digital domestic NHS COVID Pass (the NHS App or NHS.uk online service) will be deactivated temporarily following a positive test. If you need to provide evidence of your COVID-19 vaccination status while your NHS COVID Pass has been deactivated, you can access your COVID-19 vaccination records by taking the following steps:

1. Log onto the NHS App and the first screen is your home screen which will also display your name and date of birth.
2. Click on the ‘NHS COVID Pass’ link; you may need to click on ‘Continue’.
3. Select the ‘Travel’ link.
4. Scroll down and select the ‘view COVID-19 records’.
5. Your COVID-19 vaccine records can now be shown.

Please note that this method of showing COVID-19 vaccination records can only be accessed via the NHS App.

If you are under 18

Under the regulations, if you are under 18 there is no requirement for the registered person to check that you have provided evidence of your COVID-19 vaccination or exemption status.

However, as soon as you turn 18 the registered person you are employed or engaged by will need to ensure that you have provided this evidence so you can continue to provide CQC-regulated activities to people receiving care and support. You should therefore plan to get vaccinated before you turn 18. This means booking your first COVID-19 vaccine dose at least 8 weeks before your 18th birthday.

Booster doses

Currently, COVID-19 booster doses are not included in the regulations, however the government will review this regularly and update the regulations if required.

National public health advice asks all eligible candidates to take up the COVID-19 booster dose in order to extend protection from COVID-19. If you are eligible for a COVID-19 booster dose you should take this up as soon as possible.

Demonstrating your medical exemption

If you have a GP in the UK, you can apply for a medical exemption by calling 119 and requesting a medical exemptions application form. If you are eligible to apply, you will receive this form by post. Once completed and returned to your GP or relevant clinician, it will be reviewed by a doctor, specialist clinician or midwife and you will automatically receive the results of your application by post once it has been processed. You can use this notification letter to prove your exemption status.

See further information on medical exemptions and how to apply for one.

If you are not registered with a GP in the UK, you can demonstrate your medical exemption via confirmation in writing from the person or professional who is medically responsible for your treatment, or with direct knowledge of your condition, that you should not be vaccinated with an authorised vaccine.

If you are pregnant, you can also use a MATB1 certificate to prove medical exemption status. This exemption will expire up to 16 weeks after you have given birth.

If you have recently been infected with or recovered from COVID-19

As set out earlier in this guidance, UKHSA advises that individuals infected with SARS-CoV-2 (COVID-19 virus) should not receive vaccination until 4 weeks from the date of diagnosis and should therefore defer any COVID-19 vaccination appointments which were scheduled to take place until after this period of time. For the purposes of the regulations, such individuals may be considered temporarily medically exempt from needing to demonstrate that they have received their first, second or top-up dose of an authorised vaccine during this time. This temporary medical exemption will apply for a 28-day (4-week) period from an individual’s first confirmed positive test result, plus an additional 14 days (2 weeks) which individuals can use to satisfy the vaccination requirements.

If you have recently been infected with or recovered from COVID-19, you may be temporarily medically exempt from the need to provide evidence of vaccination in order to be employed or engaged to provide CQC-regulated activities. When asked by the registered person, you will need to provide evidence of your exemption, which can be done by showing proof of your positive test result. You should also note the timeline of your temporary medical exemption, as you will need to receive a subsequent dose of the vaccine before the end of your temporary medical exemption to continue being employed or engaged. Further information about temporary medical exemptions is set out earlier in this guidance, and operational guidance on how they will work in practice will also be published.

If you cannot evidence your vaccination or exemption status

Redeployment

If you are unable to provide evidence of your COVID-19 vaccination or exemption status, then your manager should explore what other options are available to you, based on availability and suitability. This could include moving you to an alternative role for which COVID-19 vaccination is not required. You should speak to your manager about your options as soon as you can. You should not assume that it will be possible for you to be redeployed.

Dismissal

If you are unable to provide evidence of your COVID-19 vaccination or exemption status, both you and your manager should explore all alternative options, appropriate and relevant to your specific care setting. You should note that the regulations may provide your employer with a fair reason for dismissal.

The COVID-19 vaccines are the best way to protect yourself and others. Research has shown the COVID-19 vaccines help reduce your risk of getting seriously ill or dying from COVID-19, reduce your risk of catching or spreading COVID-19, and protect against COVID-19 variants. If you have concerns about getting vaccinated against COVID-19, you should refer to the information and guidance linked in ‘The importance of vaccination’ section of this guidance.

If you decide not to get vaccinated against COVID-19, your employer should take all necessary advice before taking steps to dismiss you. Annex A has advice for employers (registered persons) regarding employment law and dismissal which you may find helpful.

Other measures (besides vaccination) your employer should have in place

As you are employed or engaged to provide direct, face to face CQC-regulated social care activities, it is important that you continue to follow IPC measures.

There is guidance on how to claim statutory sick-pay if you are self-isolating.

Other support available about getting vaccinated

If you are concerned or have any queries about getting vaccinated against COVID-19, you are encouraged to contact the relevant CQC registered person or your clinician to help you make an informed choice. The government has produced a range of resources, all of which are available in 19 different languages. Links to these resources can be found in the ‘Why it is important to have a vaccine’ section earlier in this guidance.

Skills for Care also provides a variety of COVID-19 vaccination information resources.

Also see ACAS guidance on raising issues with your employer.

What the regulations mean for local authorities

Overview

From 1 April 2022 registered persons must ensure that they only employ or engage people to provide direct, face to face CQC-regulated activity if they have provided evidence that they have satisfied the vaccination requirements set out in the regulations, or that they are exempt or covered by other exceptions. Please see the ‘Definitions’ section above in this guidance which explains what is meant by these terms.

Throughout the COVID-19 pandemic, local authorities have taken on extra responsibilities with dedication and compassion. They have played a vital role in supporting providers to ensure social care settings are as safe as possible.

Local authorities may employ or engage staff who work across multiple settings, for example social workers and occupational therapists. Unless these individuals are carrying out CQC-regulated activity on behalf of a registered person (which may be the local authority as per the section below in this guidance on ‘Local authorities as providers’), they will not be in scope of the regulations.

Further information about people who are in scope of the regulations is set out in the ‘Where and how the regulations apply’ section earlier in this guidance. Further information is available on how the regulations will apply to individuals providing CQC-regulated activity in healthcare settings.

This section of the guidance aims to give advice to local authorities on what the regulations will mean for them in practice.

Local authorities as providers

Some local authorities provide CQC-regulated activities themselves. Depending on the nature of those services, the regulations may well apply to them and they will need to consider the implications for their registered persons (as defined earlier in this guidance), and those they employ or engage, in line with CQC guidance, and the information in the ‘What the regulations mean for registered persons’ section earlier in this guidance.

The role of local authorities in promoting vaccine take-up

Local authorities should continue to work closely with those registered persons providing adult social care services, whether commissioned or provided directly by the local authority, to help them build confidence in the COVID-19 vaccine. Local authority public health leads should also help ensure access to rapid COVID-19 vaccination for those who decide to take up the offer. Examples of this work could include:

• facilitating conversations between clinicians and individuals who are hesitant to address their concerns
• supporting CQC registered persons to have open conversations with hesitant staff
• arranging conversations with midwives for fertility concerns
• providing access to and updating bespoke resources (webinars, Q&As, one-to-one meetings) from trusted sources (including local community and faith leaders), and signposting resources from the Department of Health and Social Care
• ensuring providers have funding available to them via the Infection Control Fund (ICF) – this can help pay staff their usual wages to attend work or a COVID-19 vaccination facility for the purposes of being vaccinated, and can also help cover costs associated with reaching a vaccination facility

This work is consistent with the role of local authorities as providers of the local public health function. Local authorities play an important role as a source of advice to registered persons on infection control and supporting take-up of vaccination.

Government will continue to work with local authorities to drive uptake and ensure access to COVID-19 vaccines, particularly in areas with the lowest uptake, and continuing to review the need for further support.

Contingency planning

Local authorities should be working with registered persons (as defined earlier in this guidance) to support them in reviewing and strengthening their business continuity plans. Local authorities should also be reviewing their own continuity plans to understand the potential impact on local services and to be able to respond effectively. This may include exploring emergency deployment of staff and mutual aid, to resource delivery of services in wider care settings where additional staff are needed to provide care and support.

Local authorities should also be aware of their local resilience forums to facilitate and ensure appropriate contingency planning. Contact information for local resilience forums is available online.

Targeted support for local authorities

The government is working with Skills for Care to ensure that resources specific to COVID-19 vaccination in the wider adult social care settings are in place. This includes guidance and best practice to support providers and local authorities with capacity and workforce planning, recruitment, and wellbeing.

Skills for Care will also provide local and national workforce support to local authorities and employers. E-Learning, interactive Frequently Asked Questions, case studies and workforce planning resources are provided by Skills for Care. These resources serve to support local authorities in ensuring safety and continuity of care in light of the regulations.

Further support for local authorities

Local authorities can seek further support from the Local Government Association (LGA) COVID-19 information service and the Association of Directors of Adult Social Services in England (ADASS).

Government has announced it will provide an additional £60 million to local authorities to support the adult social care response to COVID-19 in January. The Adult Social Care – Omicron Support Fund is on top of the £388 million infection control and testing fund announced earlier in the year to prevent COVID-19 infections and provide testing in the care sector.

Support is also available through the Community Champions programme which has allocated £22.5 million of funding to 60 councils and voluntary groups across England. Community champions work directly with communities disproportionately impacted by COVID-19 to boost confidence in the vaccine. Alongside the NHS and public health teams, they work to answer questions and support informed decisions about the COVID-19 vaccine, to remove barriers to access.

What the regulations mean for people receiving care and their friends and families

This policy has been introduced to minimise the risk to you or your loved ones against COVID-19, to other people receiving care and support, and to those who provide you or your loved ones with care and support. The main aim of the policy is to reduce the spread and impact of COVID-19.

More information about why it is important to have a COVID-19 vaccine is set out earlier in this guidance.

If you are receiving care and support, you do not need to do anything. The safeguards which this policy introduces will be taken care of by someone else.

You will not be required to check the COVID-19 vaccination status of anyone providing you with care, as the company or organisation which has sent them will have had to check their vaccination status if required to do so.

Family and friends of people receiving care and support

Your family and friends (who may also be unpaid carers) will still be able to visit you, even if they are not vaccinated against COVID-19, as it is your decision as to who visits you in your own home.

What will happen to your care if the people who care for you are not vaccinated

The government is working with the relevant people in the organisations that provide you with your care to help them support all their staff to take up the COVID-19 vaccination. The organisations and services providing you with your care, regulated by the CQC, have a responsibility under the regulations to ensure that all their staff provide them with evidence, either that they have satisfied the vaccination requirements, or that they are medically exempt or covered by certain other exceptions.

If someone who provides you with care and support cannot provide evidence of this, they may begin working in another role and no longer work with you. If you are worried or have questions about this, please speak to a staff member or the manager of your care and support services.

If a staff member who provides you with care and support leave their roles as a result of the regulations, it will be for your care provider to ensure they can recruit a suitable replacement who can provide the care that you need. Guidance and resources are in place to support them in this.

Some people who provide care and support in the care sector may have health-related reasons not to receive the COVID-19 vaccine and may be medically exempt. If you are worried about this, you can speak to a staff member or the manager of your care services. More information about medical exemptions is set out earlier in this guidance.

If you have any other questions about this policy and how it might impact you, please speak to a staff member of the organisation that provides your care.

Annex A: Good employment practice

Advice on retention and recruitment – Skills for Care

Skills for Care has developed a dedicated one-stop webpage. This brings together a range of support, information and resources to support social care employers to retain staff and, where needed, to recruit new staff. This includes case examples where employers have successfully encouraged their staff to take up the vaccine ahead of this policy being implemented. These will help share good practice from across the sector.

Policy

Registered persons should consider adopting a written vaccination policy. This might cover matters, such as:

• whether staff aged 18 or over are entitled to time off work (with or without pay) to be vaccinated or obtain evidence of medical exemption
• the time by which a care provider will expect evidence of vaccination or exemption. This will ensure it can plan its workforce and take formal steps in relation to staff aged 18 or over who are neither vaccinated nor medically exempt
• any arrangements relating to leave if staff experience side effects from vaccination. For example, it may be preferable to avoid a large number of staff being vaccinated on a single day
• how data about vaccination or exemption will be processed
• how any formal policies will apply to staff who cannot comply with the vaccination requirements
• how vaccination requirements of new recruits and agency staff will be addressed
• what action the registered person will take to ensure that clear governance and systems are in place regarding third party workers (for example, agency staff), including confirming which roles are in scope, and that the registered person is provided with evidence that no third party workers are provided in breach of the regulations
• any equality issues that arise from complying with the regulations referenced within this guidance – see section on Equality Act 2010

Guidance from the Advisory, Conciliation and Arbitration Service (ACAS)

ACAS has produced a range of guidance. This should be useful for employers when considering good employment practice as part of implementing vaccination as a condition of deployment:

Early engagement with the workforce

Registered persons should engage with their workforce early about the regulations referenced within this guidance. This will help to ensure that people are able to comply with them. Registered persons can use the grace period to:

• consider and amend their policies including if necessary, any privacy information and data protection impact assessment
• implement new or different working practices

The grace period can also be used to engage with staff and those providing care and support about:

• the vaccination requirement
• the need for people aged 18 or over providing work or services to evidence vaccination or medical exemption
• the potential consequences of not satisfying the vaccination requirements on time

Collective engagement

In addition to potential obligations under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA) (see more information below) there might be a duty to consult with a recognised trade union or employee representatives. This is because any measures may affect the health and safety of staff.

It is recommended that engagement with health and safety representatives should take place with regard to the potential impact the regulations will have on workforce health and safety. For example, the implementation of the regulations, changes to risk assessments and changes to working arrangements.

Collective consultation with the recognised trade union or employee representatives can help with consulting, understanding, and addressing any collective issues, and discussing practical and operational issues.

Before and or after any collective engagement, it may be helpful to provide a written summary to staff. This can be used to explain the requirement and what it means for them. This may avoid misunderstanding about what is required, and what it means for staff.

Individual engagement

Individual engagement and information gathering should also be used to identify those who:

• have been vaccinated or are medically exempt, or are under 18, and can evidence it
• have been vaccinated or believe that they may be medically exempt, but cannot evidence it
• have not yet been fully vaccinated but will arrange to be fully vaccinated in time
• have not yet been fully vaccinated and are unlikely to be fully vaccinated in time
• are aged 18 or over and not medically exempt, but do not wish to be vaccinated

Registered persons can then start to arrange their records to show which people have provided evidence that they have satisfied the vaccination requirements, or that they are exempt.

It is recommended that any concerns raised by an individual should be explored. Individuals should be provided with a reasonable opportunity to be vaccinated or obtain evidence they are medically exempt before any formal action is taken. The consequences of not complying with the vaccination requirements should be clearly explained. This should include when the vaccination requirements must be complied with, and what steps will be taken if it is not complied with.

Registered persons will also need to consider their staffing levels in light of individual consultation and will need to consider whether to replace staff or make other arrangements to operate appropriately if unable to deploy existing staff.

Where staff are away from work, for example on maternity leave, sabbatical, or long-term sick leave, registered persons should make appropriate arrangements in good time. This is to avoid lack of knowledge of the requirement being a barrier to returning to work on time.

Registered persons will also need to plan for staff who are under the age of 18 on 1 April 2022 but will turn 18 later. This is because they are not required to provide evidence that they have satisfied the vaccination requirements or that they are medically exempt until they reach the age of 18.

Staff who are not vaccinated or exempt

Where a member of staff cannot provide evidence of satisfying the vaccination requirements, or that they are medically exempt or fall under other exceptions (see definitions section for more details), registered persons should explore all options. This includes redeployment into any alternative role where vaccination or medical exemption is not required. This could include roles without direct contact with people receiving care and support (for example at a head office).

Registered persons might also need to consider paid or unpaid leave for their staff. This cannot be a long-term solution because the regulations as described in this guidance do not have a time limit. Leave may be considered appropriate where a worker demonstrates intent to satisfy the vaccination requirements but has not completed the full course by 1 April 2022. This may also apply where there are delays in obtaining evidence of medical exemption.

Registered persons should communicate the timescales they will adopt as early as possible and be clear about what would happen if workers are unable to adhere to the allotted timescales. Timescales will need to allow for any formal process to be followed and for notice of termination to be given if necessary.

Some registered persons – having exhausted alternative options – may have to consider dismissing employees or terminating contracts of workers. This should only apply to those over 18 who are not vaccinated and have not obtained a medical exemption. Where this is the case, registered persons must comply, at all times, with employment and equalities law and adhere to good employment practice.

Fair dismissal

Employers should consider whether staff who are not vaccinated or exempt would be considered employees or workers. Guidance about this can be found on the ACAS website.

Employees who have been continuously employed by their employer (or by associated employers) for 2 years usually have the right not to be unfairly dismissed.

Workers do not have the same unfair dismissal protection, but both workers and employees are protected under the Equality Act 2010 (see below).

An employee may be fairly dismissed if:

• there is a potentially fair reason to dismiss
• the reason is sufficient to justify dismissal
• the employer has followed a fair procedure

Fair reasons to dismiss staff who do not comply with the regulations

The regulations may provide a fair reason to dismiss an employee over 18 who is not vaccinated or medically exempt.

A potentially fair reason could be:

• the employee cannot continue to work in their position without the employer contravening a duty or restriction imposed by or under an enactment, or
• some other substantial reason of a kind as to justify the dismissal of an employee holding the position which the employee held

Where it is possible, including under the contract of employment, to redeploy an employee, these reasons for dismissal may not be justifiable as a fair dismissal. This would be the case when the employee can reasonably be redeployed to other duties where vaccination is not a requirement.

Where an employer continues overall to need the same number of employees to carry out the work in question and cannot redeploy everyone who is neither vaccinated nor exempt, this will not amount to a redundancy situation.

The reason for termination of employment will be dismissal, not redundancy, and dismissed employees will not be entitled to a redundancy payment. However, in these circumstances, the employer will need to consider how it fairly selects employees for redeployment or dismissal. Selection criteria should be objective and non-discriminatory.

Other reasons for dismissal may arise with the introduction of the vaccination requirements.

Guidance for providers on collective consultation

Employers have existing responsibilities under section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) to collectively consult with staff being made redundant. The Department of Health and Social Care has considered the issue and does not believe that any dismissals arising because a staff member is unvaccinated should engage section 188 and subsequently necessitate collective consultation with staff facing dismissal. However, this is ultimately a decision for providers to take independently and based on their individual circumstances.

It is important to note this is not a redundancy exercise. In the context of the regulations, there is no diminishment or cessation of work of a particular kind. Providers will not be concerned with finding “suitable alternative employment” and there will be no redundancy entitlements, including payments, whether statutory or contractual, triggered by this process. The redeployment or dismissal of staff members is determined by the introduction of the regulations and an individual staff member’s decision to remain unvaccinated.

While providers are being strongly encouraged to explore redeployment, the general principles which apply in a redundancy exercise are not applicable here, and it is important that registered persons are aware of this.

In any event, providers will wish to work in close collaboration with their employees and partner organisations as far as possible to develop agreed approaches to issues such as redeployment, potential dismissal of staff and related processes due to the introduction of the vaccination requirements. Providers may also wish to take their own independent legal advice on these processes to ensure they are robust.

Registered persons must act reasonably and fairly

Where a registered person is contemplating dismissal for a potentially fair reason they must also:

• follow a fair procedure, and
• act reasonably in treating the potentially fair reason as a sufficient reason for dismissal

Steps that registered persons should consider taking before dismissing an employee include:

• consulting the employee (see ‘Individual engagement’, above)
• warning the employee of the risk of dismissal if they do not evidence they are vaccinated or medically exempt within specified timescales
• giving the employee an opportunity to explain their circumstances and any reasons they should not be dismissed – this should usually be at a meeting, but this can be held virtually or if necessary, by telephone
• allowing the individual to be accompanied by a trade union representative or work colleague
• taking and sharing notes of any formal meetings, to avoid misunderstandings or disputes about what was said
• exploring alternatives to dismissal, for example redeployment opportunities where vaccination is not required
• acting consistently where cases are alike, but also considering relevant differences between cases
• deciding on an outcome and communicating the outcome to the employee
• providing a right of appeal against dismissal

Please note that these steps are non-exhaustive.

Registered persons should consider what steps they will take if a dismissed employee appeals against dismissal and completes a vaccination course or obtains a medical exemption after dismissal, but before the appeal is heard. Registered persons will need to consider whether they will reinstate employees in such circumstances, and whether they will pay back pay on reinstatement. Again, the employer should act consistently and fairly. Leave, unpaid or paid, may be an appropriate alternative to dismissal where a worker demonstrates intent to satisfy the vaccination requirements or obtain evidence of medical exemption. This may also justify a delay in giving notice.

Notice pay

It is recommended that any staff whose contracts are terminated because they do not comply with the regulations (as described in this guidance) are given their notice pay in accordance with their contract of employment or, where appropriate, pay in lieu of notice.

Ordinarily, not satisfying the vaccination requirements or having a medical exemption will not justify dismissal without notice.

Equality Act 2010

It is against the law to discriminate against anyone because of:

• sex
• race
• religion and belief
• disability
• age
• pregnancy and maternity
• sexual orientation
• gender reassignment
• marriage and civil partnership

These are known as ‘protected characteristics’.

Unlawful discrimination can include (among other things):

• direct discrimination – treating someone with a protected characteristic less favourably than others because of a protected characteristic
• indirect discrimination – putting rules or arrangements in place that apply to everyone, but that put someone with a protected characteristic at an unfair disadvantage and which cannot be justified (pregnancy and maternity is not a relevant protected characteristic in relation to indirect discrimination)

Direct discrimination cannot usually be justified, though, in very limited circumstances direct discrimination because of age may be justifiable.

Indirect discrimination can occur where an unjustifiable requirement is placed on individuals that are employed or engaged by a registered person to work in the adult social care sector, such as to be vaccinated or subject to medical exemption, but it has been acknowledged to have a worse effect on people with a particular protected characteristic.

However, where that requirement is capable of justification there is no indirect discrimination. Justification involves showing that the rule is a proportionate means of achieving a legitimate aim. The same tests apply to the dismissal of a worker because of the requirement not to allow an unvaccinated person to be employed or engaged in direct, face to face CQC-regulated activity unless they are exempt.

The regulations for the purposes of this guidance

Vaccination as a condition of deployment (VCOD), which came into effect on 11 November 2021 as a result of the regulations (‘the 2021 Regulations’), requires Care Quality Commission (CQC) registered care home staff to be fully vaccinated in order to be deployed in care homes, unless they are medically exempt.

The Health and Social Care Act (2008) (Regulated Activities) (Amendment) (Coronavirus) (No.2) Regulations 2022, agreed by Parliament on 14 December 2021 and made on 6 January 2022, further amend the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 for the purposes of preventing, detecting, and controlling the spread of infections, specifically in response to the effects of the COVID-19 pandemic.

These regulations provide that:

The requirements imposed by the regulations fall on the CQC registered person. It is this registered person’s duty to ensure that, from 1 April 2022, those they employ or otherwise engage in respect of CQC-regulated activity delivered in a direct, face to face manner, which is in scope, have provided evidence of satisfying the vaccination requirements, also set out in the regulations.

As the regulations require registered persons to only allow those who have evidenced that they have satisfied the vaccination requirements, or that they are medically exempt, or those under the age of 18, to deliver face to face CQC-regulated activity, a registered person will be able to take advantage of an exception to the usual rules prohibiting discrimination. The registered person should also not contravene the Equality Act 2010 in relation to work, if the registered person does anything it must do pursuant to the regulations. This is in so far as it relates to age, disability, religion, or belief.

The exception sets out it will not be unlawful discrimination in relation to age, disability, religion, or belief for a registered person to ensure that a person over 18 who has not provided evidence of satisfying the vaccination requirements and is not medically exempt does not deliver CQC-regulated activities in a direct, face to face manner.

This exception to equal treatment does not extend to race, sex, sexual orientation, pregnancy and maternity, gender reassignment, marriage, and civil partnership. However, please note, indirect discrimination in relation to these protected characteristics might still be capable of justification (see above and below).

For example, a registered person that chose to dismiss only the disabled staff because they were disabled would not be able to claim the benefit of this exception. This is because the regulations do not force the registered persons to choose to dismiss only disabled staff. However, where a registered person must dismiss some staff as a result of the regulations and chooses and selects staff in a fair and non-discriminatory manner the exception may be available because of the vaccination requirements of the regulations.

In the event that there was evidence that the requirement imposed by the regulations on those over 18 to have satisfied the vaccination requirements or the requirement to provide evidence of medically exemption put people at a particular disadvantage by reference to a protected characteristic, then a registered person may, subject to the exception above, have to justify that treatment.

Compliance by a registered person with the regulations is very likely to be a legitimate aim. If a registered person cannot take other reasonable steps to avoid dismissing staff (for example, redeployment to a head office, and so on), the registered person is likely to be able to demonstrate that dismissal is a proportionate means of achieving a legitimate aim such that the justification will prevent there being any indirect discrimination.

A vaccination policy and the decisions made under it must not discriminate against workers.

For example, a registered person who redeployed unvaccinated white employees to other work, and dismissed unvaccinated black employees, on the basis of race, would contravene the Equality Act 2010. A registered person which provided a right of appeal against dismissal to heterosexual employees but not to homosexual employees would contravene the Equality Act 2010.

However, most unlawful discrimination is less obvious than this.

The information set out above is for guidance only. The legal position can only be assessed by reference to the specific circumstances that apply. Registered persons should consider taking their own independent legal advice.