COVID-19: mandatory vaccine guidance

Our response to the Government's announcement that all healthcare staff in England must be fully vaccinated by April 2022.

Location: England
Audience: All doctors
Last reviewed: 2 March 2022
COVID virus illustration
Recent updates

The proposed requirement of mandatory vaccinations for health and social care staff will be revoked on 15 March 2022. If you have been affected by this issue, please contact our employment advisers  

Check if you need the jab

Who mandatory vaccination affects

This policy will apply to all CQC regulated settings in England and will only apply to those healthcare workers who are in direct face-to-face contact with patients.

At present, healthcare workers will need to have received their first jab by February 3rd in order to be fully vaccinated by the March 31st cut off point as the policy comes into effect on April 1st. Those that do not meet that deadline are at risk of dismissal.

A similar policy already applies to anybody entering an older adult care home, where the policy came into effect on 11th November 2021.

If you have already been adversely affected by this policy and would like support, then please contact the BMA.

If you have long-COVID

There have been some recent studies looking at vaccination and long-COVID.

  • An ONS study published in October 2021 found that for those who had already had confirmed COVID-19 infection, receiving a first vaccine was associated with an initial 13% decrease in the odds of self-reported long-COVID, with a further 9% decrease after the second vaccine, subject to having had the second. It is worth noting that this is an observational study and so causal interpretation might be problematic, however the study did control for other variables.
  • A French study published in September 2021 found that a first vaccine reduced the proportion of patients with long-COVID by 9 percentage points, for those who had confirmed or suspected COVID-19 infection. (Similar results to the ONS study above, although this was a case-control study, so might be considered stronger evidence as it was statistically matched.)
  • A study by King’s College using data from the ZOE COVID symptom study app, published in September 2021, found that for those who have not had COVID-19 before, being double vaccinated reduces the likelihood of experiencing COVID symptoms lasting longer than 4 weeks by nearly half (49%). This was also a case-control study. So this study is about the impact of vaccines on the likelihood of experiencing long-COVID if you become infected with COVID-19 after being vaccinated, which is different to the two studies above.

Although having long-COVID is not a reason for exemption, there are some temporary exemptions if you have a short-term medical condition. If you believe this might apply to you we would encourage you to speak to your doctor.

If you have already had COVID

Having already had COVID does not count as an exemption. There is strong evidence that vaccination – irrespective of previous infection status – stimulates a strong immune response and provides protection from serious illness. Vaccination on top of previously acquired infection is shown to provide a more robust immune response.

If you are pregnant or planning a pregnancy

The JCVI have recommended that pregnant women be offered the COVID-19 vaccine and there is no evidence that it impacts fertility. The vaccine is one of the most effective interventions to protect against serious illness from COVID-19. The JCVI, the Royal College of Obstetricians and Gynaecologists (RCOG), the Royal College of Midwives (RCM) and the UK Tetralogy Service all recommend the COVID-19 vaccination for pregnant and breastfeeding women.

In relation to mandatory vaccination, short-term medical exemptions are available for pregnant women if they choose to take this option. It is worth noting that once these expire, you will have to prove that you are fully vaccinated - otherwise you are at risk of dismissal. We would encourage anyone in this position to speak to their clinician as there are significant health benefits to being vaccinated.

If you were vaccinated abroad

Individuals vaccinated abroad will be required to provide proof of their vaccination status, such as in the form of the EU digital vaccination certificate. Depending on vaccination status, it may be necessary for individuals to receive a top-up dose if that is required by the UKHSA guidelines.

If you do not work in England

The devolved administrations in Scotland and Wales do not currently have plans to make vaccination mandatory for workers in health and social care; a consultation is planned in Northern Ireland.

If you are a student on placement on or after the April 2022 deadline

If you are working in a CQC regulated setting with patient facing contact, you will need to be vaccinated.

 

Meeting the deadline

If you cannot make the deadline because you caught COVID

If you have caught COVID you are not able to get vaccinated against COVID for 28 days. This means there are likely a number of individuals who as a result may not be able to meet the deadline of being fully vaccinated by the 31st of March cut off point as they either had a delayed first jab or have had to delay their second jab.

NHS England have indicated that individuals will be considered as temporarily exempt – for 42 days – from the date of their positive test result on the basis that there are clinical reasons why they should not be vaccinated. You will need to be able to prove a positive test such as with a text message or through the NHS COVID app.

If you are in this situation please contact the BMA for support.

If you are on leave until after the deadline

If you return to work on or after the date that compulsory vaccines are required (i.e the 1st April) then it is likely that your employer will say you need to be fully vaccinated by the time you return. There may however be limited medical exemptions in the short term if you have a short-term medical condition, and we would recommend you speak to your doctor if you feel this may apply to you.

If you are not likely to be fully vaccinated at the point of return, it may mean that you would need to seek short term redeployment, if possible, or delay your return. However, longer term you will need to be fully vaccinated or else you risk losing your job. In either of these cases please contact us to discuss further.

How to evidence your vaccination status

You can provide evidence of your vaccination status in a variety of ways.

  • Recognised forms of evidence of COVID-19 vaccination include the NHS COVID pass or equivalent from NHS Scotland, NHS Wales or the Department of Health in Northern Ireland.
  • You can also show an EU digital COVID certificate or a CDC vaccination card.
  • Certificates in English, French or Spanish – issued by a competent health authority – will also be accepted, provided they contain the necessary details laid out by NHS England (PDF) and that the vaccines received are in line with the MHRA guidelines.

If you have not had your booster jab

At present, booster jabs are not required in order for a healthcare worker to be considered fully vaccinated.

However, there is a growing amount of evidence that protection from infection afforded by vaccination wanes over time and that booster doses improve your protection from infection substantially, so we would encourage anyone offered a booster dose to take up that offer.

 

Your contract

How redeployment could impact your pay

Where redeployment is undertaken for the purpose of the VCOD framework, individuals in scope of the regulations are not eligible for pay protection of their basic salary or additional earnings (e.g. on-call payments, unsocial hours enhancements, high-cost area supplement) should they obtain employment at a lower band/grade to the one currently held, with different working arrangements.

Where a doctor continues to work as a full-time member of staff in their existing medical grade, their basic pay, at whichever pay point they have reached, would remain the same.

Where a doctor’s role substantively changes as a result of redeployment, such as because they are no longer undertaking work that attracts an enhancement (e.g. working in unsocial hours, or contributing to an on-call rota), they will no longer receive payment for the activities that they previously undertook in their role and which have now ceased.

How redeployment could impact your contract

Redeployment generally refers to moving from one role to a different role within the employer’s organisation or an associated organisation. Under some doctors’ contracts, this might also be achieved through an agreed change to the existing job plan.

However, where such a move is not permitted under the individual’s existing contract (i.e. it doesn’t say that the employer can move you into different roles as required) then it will require a contractual change that must be negotiated and agreed by both parties.

Where a contractual change is required, an employer may look to make discrete changes to your existing contract. However, if the changes required are extensive an employer may invite you to enter into a new contract.

How your job status could impact your visa

The impact of termination of employment would depend on the visa category you are on. For example, if you are a skilled worker and your visa is employment dependant, termination would likely lead to curtailment of your visa, often to 60 days or visa expiry (whichever is earliest). During this period, you would need to find alternative employment and sponsorship to remain in the UK under this route, or apply under another Immigration route to remain in the UK.

If your visa is not linked to employment, such as a spousal visa, then termination wouldn’t necessarily have a direct impact on your visa status.

Your parental leave, sick leave and redundancy rights if you are dismissed and re-employed

If your existing NHS contract of employment is terminated and you are re-employed on a new NHS contract within three months, this will not have constituted a break in service for the purposes of determining your eligibility and entitlement for parental leave.

Likewise, if you are re-employed on a new NHS contract within 12 months, this will not have constituted a break in service for the purposes of determining your eligibility and entitlement for sick leave.

In order to retain your continuous service status for the purposes of determining eligibility and entitlement for redundancy (dependent on which contract you are re-employed under), you will need to take up a new contract within one week (measured Sunday to Saturday) of your previous contract being terminated.

Compensation entitlement for job loss

Where an individual’s employment is terminated as a result of being dismissed for ‘some other substantial reason’ (see above) and redundancy is not the reason for the dismissal, they would not be subject to contractual or statutory redundancy arrangements. As a consequence, there would be no associated compensation for which the individual would be eligible as a result of choosing not to be vaccinated.

It is also worth noting that the policy applies to all CQC registered settings, including the independent sector, so opportunities to take up a role elsewhere for those who do not chose to be vaccinated are limited, at least in England.

 

Your rights

Your human rights

In November 2021, a legal case (Peters and Findlay v Secretary of State for Health and Social Care) established that the requirement for care home workers to be double jabbed was lawful, with the judge refusing permission for a judicial review to be brought to challenge the same. Government interference with human rights (such as the right to respect for private and family life under Article 8 of the European Convention on Human Rights (‘ECHR’)) may be lawful where necessary to protect the rights of others.

Your religious beliefs

The requirement for frontline healthcare workers and those working in CQC registered social care settings to be vaccinated is likely to be legally objectively justifiable as a proportionate means of achieving a legitimate aim – in this case controlling a deadly pandemic - and therefore not a breach of the Equality Act 2010.

Equally, derogation from fundamental human rights, including right to freedom of thought, belief and religion and protection from discrimination in the enjoyment of human rights is permitted under human rights legislation where it is proportionate, necessary and in pursuit of a legitimate aim. In this case, the COVID vaccination programme is likely to be regarded in law as a legitimate aim.

However, your employer should take some steps in how this is implemented to accommodate your religious belief as far as reasonably possible in the circumstances and given the requirement to control the pandemic. While your right to hold your personal beliefs is undiminished, legitimate restrictions can be imposed on how you manifest that belief during a public health emergency. It is worth noting that major faith groups have come out in support of the vaccine.

Depending on your personal circumstances, your employer should try to talk to you about your vaccination fears and understand how your religious belief impacts on your choice not to take the vaccine, then discuss potential options for how you can continue to work e.g. redeployment to a non-patient-facing role if available.

However, it is important to be aware that there is the potential for you to lose your job if redeployment is not possible. We anticipate redeployment only being an option for a very limited number of cases.

If you are vegan and against animal testing

The BMA strongly supports vaccination and it is important to be aware that not getting vaccinated will lead to dismissal if you are working in a patient-facing role in a CQC registered setting and cannot be redeployed. However, we understand members have a range of different concerns that could affect their willingness to be vaccinated. For those who are vegan or vegetarian it may help to read this statement from the Vegetarian Society on what you need to know about the COVID-19 vaccine.

If you do not want to have the vaccine

We recognise the difficulty these circumstances may cause for some BMA members. The BMA encourages members to take up the vaccine wherever possible and at the same time urges employers to explore all potential opportunities for redeployment for doctors who do not have the vaccine. Any BMA member who faces a risk of dismissal can access support from the BMA under their member benefits.

The BMA has considered the position of a doctor who is required by law to have the vaccination to continue in their current role but does not have the vaccination and cannot be redeployed from their patient-facing role. Where vaccination is a legal requirement, the employer cannot allow the doctor to continue in their role without being vaccinated. While employers should make every effort to redeploy doctors who do not have the vaccination into roles where vaccination is not required, in the majority of cases, we anticipate that this will not be possible. As such, you need to be aware that deciding not to have the vaccine carries with it a significant risk of dismissal. In most cases, this will be the likely outcome.

The Employment Rights Act 1996 ('ERA 1996') allows employers to dismiss employees who have at least 2 years continuous service for a variety of potentially lawful reasons, including conduct, capability, and redundancy; the Act also permits dismissals for ‘some other substantial reason’, which captures other circumstances. The circumstances described above could constitute a ‘substantial reason’ under the Act and provide a potentially lawful reason for dismissing. However, any such dismissal will only be lawful if the employer has conducted a fair procedure in advance, and their ultimate decision to dismiss is reasonable in all of the circumstances.

Employees who have less than 2 years continuous service cannot claim ordinary unfair dismissal so the provisions of the ERA 1996 referred to above will not apply to them. If they are dismissed as a result of not having the vaccine, the dismissal will likely be lawful provided it is not discriminatory or related to blowing the whistle. While the BMA will support any member who finds themselves in that situation, there are likely to be limited options available to a doctor who cannot be redeployed, and dismissal remains the most likely outcome.

 

Exemptions

Seeking an exemption

There are limited medical exemptions which will include, for example, those who have severe allergies to all the available COVID vaccines or those who had a serious adverse reaction to their first dose. Other medical conditions could also allow you to get a medical exemption. Medical exemptions will require clinical approval. Read more information on applying for a medical exemption (gov.uk).

  • Temporary exemptions may be possible if you have a short-term medical condition. If you believe this might apply to you we would encourage you to speak to your doctor.
  • Exemptions are available for those who have participated or are participating in a clinical trial for a COVID-19 vaccine.
  • The policy only applies to those with direct face-to-face contact with patients. This means an unvaccinated academic with minimal patient contact, for example, would either have to get vaccinated or would be unable to perform direct face-to-face activities with patients.
  • It is worth noting that, to date, the COVID vaccine is only a condition of deployment for healthcare workers working in patient-facing roles in England.
  • Previous infection with COVID-19 does not count as an exemption. 

If you are concerned about the safety of the vaccine

Any vaccine licensed in the UK has undergone a rigorous process of safety assessment by the MHRA. There is a substantial amount of scientific evidence that the vaccines are safe and effective at preventing serious disease and death. There have also been billions of doses of COVID-19 vaccine administered around the world, giving us an enormous wealth of information to draw on and conclude that all of the vaccines licenced in the UK are safe and effective at preventing ill health and death from COVID-19.

Adverse reactions to the vaccine do happen but are uncommon. Using PHE’s figures from 99.2 million doses of vaccine administered in the UK they have recorded 331,482 adverse reactions via the yellow card system which equates to around 0.3% of cases. Adverse reactions include reactions such as a headache, or a mild fever, serious adverse reactions are exceptionally rare.

If you had - or are concerned about - an adverse reaction to the vaccine

A serious adverse reaction to the first dose of a licenced COVID-19 vaccine would most likely be grounds for a medical exemption, pending clinical approval, and we would recommend you speak to your GP about this.

An adverse reaction to a previous non COVID-19 vaccine would likely not in itself be considered grounds for a medical exemption unless for example it was as a result of an allergy to a substance present in both vaccines. Nonetheless, we appreciate that some individuals may be concerned and we would recommend speaking to your doctor regarding those concerns.

Alternatives like regular testing and higher grade PPE

The Government are making vaccination a condition of deployment. In our consultation response we argued that a range of mitigation methods should be looked at to potentially allow unvaccinated healthcare workers to continue to work in some patient-facing roles. We argued that exploring more regular testing or enhanced PPE – local risk assessment permitting – may reduce infection risk enough such that unvaccinated healthcare workers could continue in their unaltered role.

The Government unfortunately did not listen to us and has decided that vaccination will be a condition of deployment in patient-facing CQC regulated activities. This means if you are not fully vaccinated, you are at risk of dismissal (unless you are exempt from vaccination).

 

What the BMA thinks

Our view on mandatory vaccination

The BMA is strongly in favour of vaccination and encourages all of our members to get vaccinated against COVID-19 – and we know from our own surveys that most doctors are.

The General Medical Council also advise that doctors should be immunised against common, serious communicable diseases, and that for coronavirus the potential risk of inadvertently spreading the virus to vulnerable patients weighs in favour of doctors being vaccinated, unless contraindicated.

However, we believe mandating COVID-19 vaccination raises a number of complicated ethical and practical issues, which we highlighted in our response to the Government’s consultation on making the COVID vaccine a condition of deployment in both its consultation on health and social care settings. Voluntary approaches have been both successful and respectful of individual rights and liberties – the current COVID-19 vaccination programme for staff has been incredibly effective with over 90% coverage of healthcare staff. A move away from this model therefore needs to be properly justified and proportionate. Targeting areas with low take-up, engaging further with concerned healthcare workers and providing information and reassurance would have been more effective and less disruptive, and ethically preferable.

In our response to the consultation on making the COVID vaccine a condition of deployment, we argued strongly that the NHS must not lose any staff if these changes were to be brought in – with redeployment being considered, as well as other ameliorating actions, such as additional PPE being worn or more regular testing. We also called for a thorough impact assessment and equality impact assessment of the policy.

The BMA has always been concerned about the potential impact of the policy on NHS staffing levels, and with Omicron having led to significant staff absences in the NHS, we have recently called on the Government to update its risk assessment and, if necessary, not rule out a delay to the policy coming in.

Our view on legally challenging the imposition

Having reviewed existing case law, the BMA does not believe there is a reasonable prospect of successfully challenging a requirement that doctors/healthcare staff involved in face-to-face treatment of patients are appropriately vaccinated.

Our view on using a template letter to challenge the vaccination

We are aware that such template letters have been produced by third parties. They seem to suggest that completion of the template and submission to an employer will be an effective means of challenging the requirement to be vaccinated in a particular role, or to legally challenge the basis of any dismissal that might follow a decision not to be vaccinated.

The BMA cannot attest to the accuracy of these letters, or the legitimacy of the parties that have produced them. We would therefore urge members not to rely on the template letters and to instead speak to one of our Employment Advisors for guidance and support in their specific circumstances.

 

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