COVID-19: the year of vaccination

While 2020 was undoubtedly the year of the COVID-19 pandemic, 2021 is becoming the year of the vaccination. In this article, our industry experts consider the latest developments relating to the vaccine and provide an overview of its impact on various sectors.

The vaccine roll out

The UK government’s Vaccines Taskforce secured early access to 367 million doses of most promising vaccine candidates. On 16 October 2020 the Human Medicines Regulations 2012 (2012 Regulations), which allows unlicensed medication to be used in an emergency such as a pandemic, was updated by the Human Medicines (Coronavirus and Influenza) (Amendment) Regulations 2020 (2020 Regulations), to allow the 2012 Regulations to grant a temporary authorisation of a COVID-19 vaccine.

On 2 December 2020 the first COVID-19 vaccine was approved in the UK, with the aim of vaccinating 15 million people by mid-February 2021 and all adults considered suitable to be vaccinated by mid-September 2021.

Contact: Karishma Paroha

Legal protection, immunity and indemnity

But what are the potential issues? With the rapid vaccine rollout and lack of longitudinal studies, there is potential for unknown long-term effects or reactions.

The 2012 Regulations provides immunity from civil liability for any loss or damage resulting from the use of unlicensed products and the 2020 Regulations extends immunity to include those in supply chain of the COVID-19 vaccines.

The 2012 Regulations preserves the right to bring a claim for a defective product under the Consumer Protection Act [1987]. In practice, if a patient has been warned about a specific side-effect, it is unlikely that the vaccine would be found to be defective on this specific ground. However, if harm is sustained from one vaccine due to an abnormal risk that no other vaccine carried, then the vaccine could be found to be defective.

The 2020 Regulations also make provision for the removal of immunity where there has been a “significantly serious breach” of a condition attached to the authorisation process. Ultimately, what constitutes a “significantly serious breach” will be a decision for the courts.

The government granted Pfizer legal indemnity protecting it from being sued in respect of its COVID-19 vaccine and the Department of Health and Social Care has confirmed indemnity protecting Pfizer from legal action as a result of any problems with the vaccine. The terms and scope (including liability clauses) haven’t been disclosed but we anticipate similar indemnity agreements will be agreed with other vaccine manufacturers.            

Contact: Karishma Paroha

Do employees have to be vaccinated?

Now that the vaccine roll out is in full swing, focus for many now turns to returning to the workplace and the impact on employer/employee relations.

The Public Health (Control of Disease) Act [1984] prevents individuals from being compelled to undergo mandatory medical treatment including vaccinations. However, express clauses in employment contracts could impose a contractual obligation on employees to be vaccinated. Such clauses would be unusual but are likely to become more commonplace.

But what about asking employees to disclose whether they have been vaccinated? Information collected from employees relating to COVID-19 will be considered “special category data” under the General Data Protection Regulation. As such, employers must have an appropriate legal basis for asking for and processing this information, such as ensuring the health and safety of workers and ensuring a safe system of work.

We are in unchartered waters in respect of the steps employers may fairly take towards employees who refuse to be vaccinated and there is likely to be a great deal of case law on this issue over the next few years. However, employers should be aware that taking disciplinary action or dismissing employees who refuse to be vaccinated carries significant risk of claims for discrimination (depending on the reason for the refusal) as well as unfair dismissal.

Contact: Erica Aldridge

The impact on hospitals and medical professionals

The UK has three authorised vaccines for COVID-19; more than any other country in the world. The government’s key priority is to save as many lives as possible, as quickly as possible, while also reducing the hospitalisations that are creating such pressure on the NHS.

The impact of the pandemic on medical staff and hospitals cannot be underestimated. In November 2020, 4.46 million people were on waiting lists for hospital treatment in England, the highest number since records began and on 10 January 2021, around one in five major hospital Trusts in England had no spare adult critical care beds.

Although daily cases continue to fall and there appears to be a light at the end of the tunnel, the effects of the pandemic are likely to be felt in the long-term. Vaccinating frontline staff is a priority to avoid staff absences because of infection or the need to quarantine or isolate.

On 17 January 2021, around 53,000 NHS staff were off work due to the virus and research from June and July 2020 carried out at nine intensive care units, concerning how staff were coping as the first wave eased, noted that 45% met the threshold for probable clinical significance for at least one of severe depression (6%), post-traumatic stress disorder (39%), severe anxiety (11%) or problem drinking (7%).

Contact: Cindy Tsang

A game-changer for the care home sector?

The COVID-19 pandemic raises particular challenges for care home residents, their families and the staff that look after them.

Care homes have a legal duty under the Health and Safety at Work etc. Act [1974] to ensure the safety, health and welfare “so far as is reasonably practicable” of employees and persons not in their employment.

As the national testing capacity increased, the government prioritised testing in care homes. In May 2020, a new online portal made it easier for care homes to arrange deliveries of COVID-19 test kits, with symptomatic and asymptomatic care home staff and residents in England eligible for testing.

The Vivaldi Study alongside advice from SAGE set out the case for frequent testing in care homes prompting the government’s social care testing strategy. This is based on four pillars:

  1. Controlling the spread of infection
  2. Supporting the workforce
  3. Supporting: independence, end of their life care and responding to individual needs
  4. Supporting local authorities and the providers of care.

The vaccine is a game-changer for the care home sector. The speed of the roll out is both ambitious and world leading. On 1 February 2021 the NHS announced that a COVID-19 vaccine has been offered to residents at every eligible care home in England. Prime Minister Boris Johnson has described the achievement as a “crucial milestone”. However, we cannot ignore the human impact and psychological toll this whole pandemic will have upon this sector.

Contact: Joy Middleton

Comment

The pandemic has been more than a health crisis. Its impact is far reaching and long-term: from lifting lockdowns, delayed hospital treatments, to returning to the workplace. The vaccine has been rolled out at an extraordinary rate but just how rapid will these key sectors recover? As 2021 unfolds, there will be many challenges impacting individuals, businesses and society at large.

Read other items in Personal Injury Brief - February 2021

Related items: