Sometimes complex jigsaws only reveal their picture at the end - there are many in the health and social care sector hoping that this will happen as the Government piece together the mandatory vaccination plan. Sadly they seem to be making up the jigsaw as they go along and haven’t yet made all the pieces. Last week a further piece was added to the vaccination exemption section. To continue with this analogy, the jigsaw pieces we now have are as follows:

  • Employees working in CQC care homes can currently self certify that they meet the medical criteria for exemption from the covid vaccine (see blog of 15 September here).
  • This period of self exemption is only for 12 weeks from the launch of the exemption process – hence a certified exemption will be needed after 24 December 2021. 
  • The process for gaining a medical exemption can be found here.
  • Employees now need to call 119 and they will be issued with an application form to apply for an exemption. Once completed and sent back, this form will then be reviewed by the relevant clinician responsible for their care and the results sent through to the individual (not the employer) within 2-3 weeks.
  • Once the exemption is given, employees can use the NHS Covid Pass either on the app or on the NHS website – with a paper version to follow.
  • The decision made by the clinician is final with no right to appeal.
  • Pregnant women who wish to use a medical exemption DO NOT need to apply - they can use their MAT B1 certificate. If this is their preferred route, the exemption will expire 16 weeks post-birth.

However, there are still a number of pieces of the jigsaw puzzle missing:

  • There is a continued lack of clarity as to what is a medical exemption. This recent press release still notes that "other medical conditions could also allow you to get a medical exemption" with no indication of what 'other' will mean. Similarly, we know that "short-term exemptions will also be available for those with short-term medical conditions" but again no indication of what those short term conditions are. The only clarification has been that noted above and the use of MAT B1 forms by pregnant employees.
  • Is there any obligation on an employee to share the outcome of their application before 24 December 2021? I consider providers will need to ask any employee who has self-certified to make an application as soon as possible and to disclose the outcome as soon as it is received.
  • What happens if the clinician responsible does not have time to respond before 24 December 2021? Hopefully, such cases will be rare but we expect judgment will then need to be exercised based on an employer’s knowledge of someone’s reason for claiming an exemption viewed against the details of exemptions that are known. 
  • What happens if someone who has self-certified is told by their clinician that they are not exempt, can they still work until 24 December 2021? My view is that allowing the employee to continue to work would not satisfy the regulations. However, the Government’s self-certification form is drafted such that an employee might reasonably expect to be able to continue working for this period unless they have made a false self-certification. In those cases, there may be a disciplinary issue.

I will comment further if more pieces of the jigsaw are made. In the meantime, we would advise employers continue to inform their workforce of the need to apply for this medical exemption where appropriate and as soon as possible and to make sure the outcomes are disclosed.