The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 were made on 22 July 2021 and come into force on 11 November 2021.

They amend the safe care and treatment provisions in regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 by inserting a new provision requiring staff employed in registered care homes to be fully vaccinated unless they are exempt.

The Regulations are the result of a consultation which ran from April to May 2021.On 9 September 2021, the Department of Health and Social Care (DHSC) published a consultation on whether the mandatory COVID-19 vaccination requirements for workers deployed in care homes with older adult residents should be extended to other health and care settings and on whether to include flu vaccinations in the requirements. The requirements would not extend to those who are medically exempt from vaccination. The DHSC has now published its response to the government consultation and the government has decided that providers of CQC regulated activities in the health and social care sector must only deploy individuals who have been fully vaccinated against COVID-19 to roles where they have direct, face-to-face contact with patients and service users. Front-line workers and even those not directly involved in patient care, such as receptionists, ward clerks will also be caught by the new rules. The new rules will be applicable to all models of worker including agency workers, volunteers, or trainees.

The regulations will come into force on 1 April 2022 and will be subject to a 12-week grace period to give employers and workers time to meet the new requirements.

It is anticipated that the new regulations will be challenging for employers to navigate, particularly in the context of employee dismissals.

Judicial review proceedings

On 9 September 2021, judicial review proceedings were issued by two care home workers challenging the mandatory vaccination requirement.

The proceedings have been brought on five grounds:

• the regulations are incompatible with laws prohibiting the enforcement of mandatory vaccines.
• the Health Secretary failed to consider the efficacy of alternatives to mandatory vaccination and did not consider the vaccination rate of care homes and/or persons with natural immunity.
• the regulations interfere with the public’s right to ‘bodily integrity’ and is severe, unnecessary, and disproportionate.
• the regulations will disproportionately impact women and those who identify as Black/Caribbean/Black British, in contravention of Articles 8 and 14 of the European Convention on Human Rights.
• the regulations are irrational and will lead to shortages in both front-line and non-front line care workers.

Employers requiring staff to be vaccinated

A survey of 400 HR directors, commissioned by Indeed Flex, has suggested that 70% of employers intend to introduce a mandatory requirement for staff to be vaccinated against COVID-19. One-third of those surveyed said that only vaccinated staff would be able to return to the office. Only 15% of those surveyed stated that vaccination status would have no impact on their decision to return a staff member to the workplace. In addition, some companies have already implemented other vaccine-related policies, such as reducing sick pay for unvaccinated staff who are required to self-isolate.

This bulletin is for general guidance only and should not be used for any other purpose. It does not constitute and should not be relied upon as legal advice. 

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