Patient receiving COVID-19 vaccine

COVID-19 and mandatory vaccination

Your rights if you are considering refusing mandatory vaccination

 

The information below has been compiled by RCN advisers in public health, infection control, and employment relations.

The RCN strongly recommends all members are vaccinated as soon as they can. It is considered best practice to protect you, your patients, and clients, as well as friends and family. The vaccine reduces the individual’s risk of severe illness, it will also reduce the chance of you contracting the infection and thereby passing infection to others who are more vulnerable to serious disease as is evident from the emerging evidence from COVID-19 vaccine surveillance reports.

It is important that nursing staff also have up-to-date information, so they can advise patients and the public on vaccination.

For staff working in CQC regulated nursing and care homes providing nursing or personal care in England, amendments to The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 come into force on 11 November 2021.

The government are also consulting on Making vaccination a condition of deployment in the health and wider social care sector this will affect staff in all CQC regulated health and care sectors in England.

Some members might be anxious or decide to still not to be vaccinated. The questions and answers below are intended to provide further information and assistance.

See RCN position on mandating vaccination for health and social care staff.

Under regulation 7 of the Control of Substances Hazardous to Health Regulations (COSHH) 2002, employers must ensure the exposure of employees to substances (including biological agents and pathogens) hazardous to health is either prevented, or where not reasonably practicable, adequately controlled. 

Under regulation 6 of the COSHH Regulations an employer shall not carry out work which is liable to expose any employees to any substance hazardous to health unless it has:

(a) made a suitable and sufficient assessment of the risk created by that work to the health of those employees and of the steps that need to be taken to meet the requirements of the Regulations; and (b)implemented the steps referred to in sub-paragraph (a)

This includes taking all reasonable steps to ensure all staff are protected and provided with PPE.

The RCN recommends taking up vaccination as best practice and we also recognise there may be consequences for members at work if they have not been vaccinated.

Staff should however be able to make this decision in a supportive environment.

Staff must have access to the right information, encouragement and clear explanation of the benefit and value of the vaccine and an opportunity to explore any reasons why an individual is hesitant.

There should be a clear and transparent risk assessment for staff and services impacted. Wherever possible redeployment OR the offer of a suitable alternative role within the organisation or wider health service.

Vaccines must also need to be made easily accessible to staff during the working day.

Employers must also monitor the impact of staff vaccination policies on staff recruitment and retention and any equality impact for staff in minority groups.

Similarly, employers need to monitor the impact to service users in terms of the care they can receive.

If an RCN member chooses not to be vaccinated due to medical risks, vaccine concerns or religious beliefs, employers must consider those concerns within the workplace. (see below for our section on ‘Refusal to be vaccinated: religious and medical grounds (including pregnancy).’

In their guidance to the COSHH regulations, the Health and Safety Executive (HSE) point out that immunisation should be seen only as a useful supplement to reinforce physical and procedural control measures, not as the sole protective measure.

The HSE advise that employees may not wish to take up the offer of immunisation, or they may not respond to a vaccine and will, therefore, not be immune. Employers need to still consider the effectiveness of the other controls and consider whether any additional controls should be implemented to allow them to work safely.  In practice this will mean the continued provision of respiratory and other protective equipment, effective ventilation and, where the risk of harm remains high, potentially redeployment.

As a health and social care worker do I have to have the vaccine?

No-one can be forced to have any treatment. In the case of vaccination which serves to protect individuals but also reduce the burden of disease, it can also help stop transmission of infection. Vaccination may be considered necessary to work in some areas and settings to protect vulnerable patients and clients and to help slow transmission of infection. The evidence for the COVID-19 vaccine is emerging all the time and available in COVID-19 vaccine surveillance reports.

The RCN recognise that there may be consequences for you at work if you have not been vaccinated.

Under the Health and Safety at Work Act and the UK Infection Prevention and Control (IPC) guidance, employers must ensure so far as is reasonably practicable, the health, safety and welfare at work of all its employees. This includes, conducting appropriate risk assessments that reflect the specific context workers are operating in. Also, within the assessment of risk, employers must consider mitigations that will reduce those risks, and this could require staff needing to be vaccinated when working with vulnerable groups and in front line roles. Vaccination however is just part of the overall measures to protect staff and patients. It is essential that other protection, such as adequate respiratory PPE should be in place.

Vaccination against certain diseases may be included in contracts of employment for new starters working in some roles and sectors. Every effort should be made to support staff to accept vaccination or deploy them to lower risk areas. This is similar to the policy for hepatitis b vaccine for health and social care workers which sits within the wider PHE exposure prone procedures and blood born virus guidance.

Employers will need to review risk assessments and those who refuse vaccination may not be offered employment. In some circumstances it may be possible to consider employing staff in a lower risk environment.

For RCN members on existing contracts who decide they do not want the vaccine their employer should explore their reasons with them. Where possible employers should consider redeploying staff to lower risk areas. However, it is acknowledged that for small providers this will not be feasible or practical. Where staff continue to refuse vaccination they may face dismissal.

If your employer is taking disciplinary action against you for refusing to be vaccinated see our guidance on dismissal.

Can a prospective employer demand that I have the vaccination as part of my conditions of employment? 

This may be included in contracts of employment for new starters working in some roles and sectors. Every effort should be made to support staff to accept vaccination or deploy them to lower risk areas. This is similar to the policy for hepatitis b vaccine for health and social care workers which sits within the wider guidance to minimise the risk for staff in exposure prone procedures and blood born virus.

Staff who decline vaccination should not necessarily be denied employment if it is possible for staff to be employed or redeployment to low-risk areas. It is recognised however, that in smaller organisations it may not be possible or practical to facilitate. As a result, where individuals refuse the vaccines recommended, they may be refused employment.

For RCN members on existing contracts who decide they do not want the vaccine, their employer should explore their reasons with them. If possible, employers should consider redeploying staff to lower risk areas. However, it is acknowledged that for small providers this will not be feasible or practical. The change to the legislation in England for staff working in regulated CQC care homes means that staff who continue to refuse vaccination could face dismissal. (see detail below)

What is the situation for staff working in CQC regulated homes in England?

Members who work in nursing and care homes, whether directly employed or providing care through a wider commissioned service in England will be required to be vaccinated from 11 November 2021.

For staff working in CQC regulated nursing and care homes providing nursing or personal care in England, amendments to The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 come into force on 11 November 2021. The regulations apply to those directly employed within care homes. They also apply to those coming into care homes to do other work, for example, healthcare workers providing care via NHS or other services, tradespeople, and volunteers.

Those who cannot be vaccinated for health reasons, and friends and family visiting a resident, are exempt from the regulations. The regulations do not provide an exemption for religious or philosophical beliefs.

The DHSC operational guidance details the requirements and the exemptions to the regulations, these include:

  • people who have evidence of a medical exemption
  • people accessing settings in an emergency response, this would include emergency ambulance response, or emergency repairs being required
  • friends and relatives visiting residents.

See also Temporary medical exemptions for COVID-19 vaccination of people working or deployed in care homes.

The NHSE/I letter and FAQs to providers details information for NHS organisations in England who provide care to residents in care homes.

The RCN will continue to work with employers to mitigate the impact on members’ employment as far as possible. The RCN recognises however, there may be consequences for members at work, if they have not been vaccinated, and their employer deems that vaccination is necessary (due to the law and/or health & safety risks present in the workplace). Please also see the employers’ responsibilities section below.

The DHSC are now consulting on a wider amendment to the regulation  - Making vaccination a condition of deployment in the health and wider social care sector - so the scope of the changes may change to include wider heath care staff.

Can my employer dismiss me if I am not vaccinated?

Under the amended Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 it is a legal requirement for all staff working in care homes to be vaccinated from the 11 November 2021.

The regulations apply to those directly employed within nursing and care home facilities. They also apply to those coming into the facility to do other work, for example, healthcare workers providing care via NHS or other services, contractors, and volunteers.

The legislation currently only applies in England and to staff working in nursing and care homes either as direct employees or providing commissioned care via the NHS or other agencies to residents in nursing and care homes. We recognise however, that this might change to include wider multi-professional team.

The devolved administrations currently have no plans to introduce similar legislation, however, where organisations have provision in England but also have services in the devolved nations they may apply an organisational policy to meet the amended legislation in England. As such this could impact members working for these organisations in other countries.

For RCN members on existing contracts who decide they do not want the vaccine their employer should explore their reasons with them. Where possible employers should consider redeploying staff to lower-risk areas.  However, it is acknowledged that for small providers this will not be feasible or practical. Where staff continue to refuse vaccination they are likely to face disciplinary procedures and potentially dismissal.

Those who cannot be vaccinated for clinical reasons, and friends and family visiting a resident, are exempt from the regulations. The regulations do not provide an exemption for religious or philosophical beliefs.

The DHSC operational guidance details the requirements and the exemptions to the regulations, these include:

  • people who have evidence of a medical exemption
  • people accessing settings in an emergency response, this would include emergency ambulance response, or emergency repairs being required
  • friends and relatives visiting residents.

The guidance also includes information for managers and care homes on the process for monitoring of vaccination records of staff and those coming into the homes who are not exempt.

The NHSE/I letter and FAQs to providers details information for NHS organisations in England who provide care to residents in care homes

As set out in the ACAS guide on working safely during coronavirus, if your employer believes your reason for refusing the vaccination is unreasonable, this could result in disciplinary action on the basis you have failed to follow a reasonable management instruction. This will depend on the vaccination policy in place at your workplace and whether vaccination is necessary to do your job.

The RCN will continue to work with employers to mitigate the impact on members’ employment as far as possible. The RCN recognises however, there may be consequences for members at work, if they have not been vaccinated, and their employer deems that vaccination is necessary (due to the health & safety risks present in the workplace).

Also see our guidance on your employers’ responsibilities below.

If your employer is taking disciplinary action against you for refusing to be vaccinated see our guidance on dismissal. 

I declined the vaccine and I have fallen ill with COVID-19. My employer says that I will not receive full sick pay. What can I do?

Check your sick pay entitlements as set out in your contract of employment. You should be paid statutory sick pay, but your employer may try to argue that any additional element of your sick pay should be withheld. The RCN position is that uptake of the vaccine is voluntary and should not be connected with any sick pay. You should check your employment contract to determine what sick pay is owed to you contractually. If you are unable to resolve the issue, contact us. A claim for unlawful deduction of wages and/or discrimination may be considered.

Could I be breaching the NMC Code of conduct if I decline to be vaccinated?

Under the NMC code all registered nurses midwives and nursing associates have a professional responsibility to preserve safety and to take all reasonable precautions necessary to avoid any potential health risks to themselves or others. Whilst receiving the vaccine will not be mandatory, you must work with your employer to mitigate any risks if you have not been vaccinated. 

This could include redeployment to areas with less vulnerable patients, regular testing and continuing to protect yourself with ongoing use of PPE, even when other staff are not required to make use of those precautions. Provided that you co-operate with your employer to avoid exposing others to risk, you should be deemed compliant with the NMC code.

There are very few contraindications to vaccination. The RCN are clear that all members should be vaccinated as soon as possible.

The legislation is changing in England for those working in care homes Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021. All staff either directly employed or providing care in care homes through NHS or other agencies will need to be fully vaccinated from the 11 November 2021, there is no exemption for not being vaccinated for religious or philosophical belief reasons.

The legislation currently only applies in England and to staff working in care homes either as direct employees or providing commissioned care via the NHS or other agencies to residents in the care home. We recognise however, that this might change to include wider health and care staff.  Where organisations have provision in England but also have services in the devolved nations, they may apply an organisational policy to meet the amended legislation in England. As such this could impact members working for these organisations in other countries.

What if I am refusing vaccination because of my religion and belief?

COVID vaccination is recommended by UK religious leaders they have a range of resources with useful information to help dispel some of the myths and provide advice for those who are hesitant.

NHS England guidance on supporting COVID-19 vaccine uptake during Ramadan.

Under the amendments to the legislation in England Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 there is no exemption for not being vaccinated for religious or philosophical belief reasons.

What if I am refusing the vaccination because I am pregnant?

Pregnant women are advised to have COVID-19 vaccines as soon as they are able. Vaccination not only helps protect the mother but maternal antibodies to the vaccine will provide immediate protection to new born infants. See the guidance from the RCOG and RCN.

Individuals should discuss any concerns they have in relation to their medical history with their GP.

What if I am refusing the vaccination because of a medical issue?

The Green book Immunisation against infectious disease Chapter on COVID-19 details the few medical contraindications to receiving the vaccine. There is further information on this here Temporary medical exemptions for COVID-19 vaccination of people working or deployed in care homes

Please also see our section on allergies.

If you are subjected to a detriment as a result of a valid exemption from vaccination, or even dismissed and the reason for your refusal is related your medical condition and vaccination being contraindicated for you, you may have a disability discrimination claim for under the Equality Act 2010 provided your medical condition amounts to a disability. Employers are obliged to make reasonable adjustments for disabled workers if they are placed at a substantial disadvantage in the workplace.

Members who believe vaccination is contraindicated because of an existing medical condition should discuss this with their GP. As with any medical information, your medical reason for refusal should be treated in strictest confidence by your employer, following occupational health guidance.

What is the situation for Student nurses on placement in social care settings?

Student nurses or trainee nursing associates on placement in nursing and care homes or within teams who provide care through a wider commissioned service in England will be required to be vaccinated from 11 November 2021.

For all those coming into CQC regulated nursing and care homes providing nursing or personal care in England, amendments to The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 come into force on 11 November 2021.

The regulations apply to those directly employed within care homes. They also apply to those coming into care homes to do other work, for example, health care workers providing care via NHS or other services, tradespeople, and volunteers, this would include students.

Those who cannot be vaccinated for health reasons, and friends and family visiting a resident, are exempt from the regulations. The regulations do not provide an exemption for religious or philosophical beliefs.

The DHSC operational guidance details the requirements and the exemptions to the regulations, these include:

  • people who have evidence of a medical exemption
  • people accessing settings in an emergency response, this would include emergency ambulance response, or emergency repairs being required
  • friends and relatives visiting residents.

The NHSE/I letter and FAQs to providers details information for NHS organisations in England who provide care to residents in care homes.

The RCN will continue to work with universities and employers to mitigate the impact on members’ employment as far as possible. The RCN recognises however, there may be consequences for students, if they have not been vaccinated.

What about RCN support?

If you intend to refuse a vaccine on medical grounds, please see our employment rights section above. If your refusal leads to a dispute with your employer, please see our guidance on dismissal and contact us for advice and support.

RCN regional support may be available to support members through the process. Where there are no exemptions to vaccination and staff remain unvaccinated however, the RCN recognise that staff will face dismissal from employment under this change in the law if staff remain unvaccinated.

Looking for something else?

Please see our COVID-19 and vaccination FAQs for our most commonly asked questions about accessing and receiving the vaccine.

If you are a vaccinator, our clinical guidance may also be helpful.

Page last updated - 23/09/2021