In its COVID Autumn and Winter Plan (see our Be Aware of 15 September 2021), the government committed to providing more detail about its proposals for mandatory COVID certification in England in certain designated settings. This forms part of its Plan B for tackling the pandemic and would only take effect in the event that pressure on the NHS becomes unsustainable over coming months.
The government has now outlined its proposals and is also asking for feedback through a Call for Evidence which closes on 11 October 2021. The plans are specifically of interest to the following settings which are impacted by the proposals:
- nightclubs and other venues open between 1 am and 5 am serving alcohol and having a dance floor and music for dancing (unless the dance floor is closed off);
- businesses operating indoor events with 500 or more attendees, or outdoor events with 4,000 or more attendees, where attendees are likely to stand or move around during the event (other than to go to the bathroom, obtain food or drink or leave the event) and where there is no allocated seating;
- businesses operating any events with 10,000 or more attendees.
Requirements for visitors
The government proposes that in the event that it decides it is necessary to introduce mandatory COVID certification for the above settings, all visitors aged 18 and over will have to demonstrate their status using the NHS COVID Pass (or certain international vaccine proofs). The Pass would be modified so that it would no longer certify status on the basis of vaccine, test or natural immunity status. Instead the Pass would only certify on the basis of full vaccination (or exempt) status. The Pass will not show on what basis certification has been given.
Organisations will be expected to conduct 100% visual checks on attendees, subject to any endangerment to the safety of visitors or the workforce. In the limited circumstances where it may not be reasonably possible to carry out 100% checks, “reasonable measures” to check COVID status will need to be agreed with the local authority.
Policy and record-keeping obligations
The government proposes that the affected businesses will be expected to produce and keep up-to-date a statement of their certification policy setting out the measures they are introducing to ensure they are meeting and implementing their certification requirements and to ensure the public are aware of these measures.
Affected venues will also be expected to retain records for a period of 3 months containing the following information:
- the date of the event or, for a venue, the date to which the records relate;
- the number of people attending the venue or event;
- if there are reasons for departing from the statement of certification policy:
- the reasons for doing so;
- the measures which were adopted on that occasion;
- how an individual’s eligibility to enter the venue was checked.
- The number of occasions on which measures other than full checks were agreed with the local authority;
- The number of occasions on which people have been permitted to enter the event or venue without the need for certification checks to avoid injury or escape a risk of harm.
Local authorities will have the power to request these documents within 3 working days or as part of an inspection.
Penalties for non-compliance
A failure to meet the certification requirements would be an offence attracting a Fixed Penalty Notice of £1,000 for the first offence, £2,000 for the second offence, £4,000 for the third offence, and £10,000 for 4 or more penalty notices. Individuals who make, adapt, supply or offer to supply false vaccination documentation will also commit an office attracting a penalty of £10,000. Local authorities can also serve Coronavirus Improvement Notices, Restriction Notices and Immediate Restriction Notices.
The government does not rule out the possibility of its plans being extended more widely than the settings referred to above but, at this stage, it is planned that the following will specifically be exempt:
- Communal worship;
- Weddings and civil partnership ceremonies and receptions;
- Funerals and other commemorative or significant life-cycle events;
- Free, unticketed outdoor events in public spaces, including street parties, protests and mass participation sporting events;
- Events in private dwellings which are unticketed and not charged for.
Workers at the affected settings
Under the government’s plans, every person aged 18 or over providing in-person services at a venue subject to mandatory certification will be expected to either be:
- Fully vaccinated;
- Undertaking regular, supervised testing.
The government proposes that employers operating an event should check the vaccination status of any workers who are not regularly testing, using the NHS COVID Pass. This would only be required on first entering the venue (i.e. not each time work is attended).
However, where workers test regularly (and are not vaccinated or exempt) they would be permitted to complete a supervised (remotely or in-person) test within 72 hours of the start of any shift. The event organiser will need to nominate or appoint supervisors to oversee the testing.
 Full vaccination is achieved 14 days after the completion of a course of doses of a UK authorised and licensed vaccine. At this stage the government is not proposing that a booster jab will be required in order to be deemed to have been fully vaccinated.
 Individuals are exempt if (1) they are part of a UK COVID-19 vaccine clinical trial or a clinical trial in another country recognised by the UK; or (2) they should not be vaccinated for medical reasons, as determined by clinical review