Although Covid vaccinations weren’t made compulsory for healthcare staff, it’s still an issue with complex implications for employers. HR expert Liz Willett addresses some of the dilemmas and challenges that practices and other organisations continue to face.
In November 2021, the Government began the legal process of introducing compulsory vaccination for all frontline staff from 1 April, 2022. This policy was withdrawn in February 2022 due to opposition from NHS workers.
Advice from NHS Employers is still to encourage vaccination of all staff, whether frontline or not. Some NHS employers have decided to make Covid vaccination a condition of employment for new recruits in frontline roles. With no legislation to back this up, however, it becomes a matter of individual employer policy, rather than a national mandate (which was easier to defend within an employment law context).
Over the past few months, we have come across key issues and questions that we will summarise and try to answer below. Please remember that individual circumstances will differ, and it is always advisable to take bespoke employment advice from your HR service or legal advisors if you are unsure.
Can I legally defend a compulsory vaccination policy for new recruits?
In theory, yes. In practice you will need to understand people’s reasons for not complying and make adjustments for those who have a medical exemption. You may also need to consider whether vaccination is a genuine occupational requirement (because they may have contact with vulnerable patients) or just desirable. To support your policy, a risk assessment of roles may be useful to update regularly and have on file.
Exactly what is ‘frontline’?
Frontline has been defined as someone who may have direct or incidental contact with patients while discharging their duties or accessing their place of work. Therefore, someone who walks along a corridor which may contain a patient would be considered patient facing.
Some employing organisations, such as federations or PCNs, are facing a tricky issue where PCNs or practices are insisting that ARRS staff are vaccinated before entering their premises. How can this be managed?
In cases such as these, the employer must have clear, documented evidence from the ‘placement’ PCN or practice that categorically states that they will only allow ARRS workers who are vaccinated or possess a legitimate exemption to access their premises and have face-to-face contact with their patients.
The employee must be consulted to understand their vaccination status, either to provide exemption or to see if they can be persuaded or supported to be vaccinated. If not, can the role be changed to minimise the risk, or the employee redeployed?
If there are no options for remote working or redeployment and the PCN/practice persists with its requirement for vaccination, there may be no other alternative than a ‘some other substantial reason’ dismissal under the Employment Rights Act 1996. Please do take professional advice and consult your insurers that provide tribunal cover (if you have it) before making such a dismissal.
Some staff (particularly the clinically vulnerable) are worried that they may be working alongside unvaccinated colleagues and patients where the risk of transmission may be higher. What do we do?
An individual may disclose their own vaccination status but, as with any health information, it is not permitted for an employer to disclose this without express consent.
Where vulnerable staff have concerns, the important steps for an employer to take are: understand their concerns, undertake a specific risk assessment with them and look to minimise any risks, as appropriate. Occupational Health may be useful in these circumstances.
What other Covid requirements are in place for NHS staff that don’t apply to the general population?
NHS staff are still required to isolate for at least five days following a positive Covid test (but not in cases of exposure to a person who has tested positive). NHS staff are also required to test twice weekly for Covid and can access tests through the Government website.
Conclusion
Managing Covid is likely to be an issue for years to come. It is therefore important to ensure that you have appropriate risk assessments in place; you keep your understanding of employees’ vaccination status up to date; you monitor the requirements for the testing and isolation of NHS staff (which is becoming different to the general public’s); and that policies are updated to reflect these changes.
Liz Willett is Head of Business Partnership at Kraft HR Consulting Ltd , which works closely with practices, federations and PCNs in the Midlands and further afield.
This article was first published on our sister title Pulse Intelligence. To find out how Pulse Intelligence can help your practice maximise income and be more efficient sign up for a free trial at www.pulse-intelligence.co.uk
