Quick Fire – January 2022

PPE supplies for workforces, precautionary COVID testing for critical workers, mandatory vaccines for the health and social care sectors, and the Statutory Sick Pay Rebate – all included in this month’s quick fire round up.

Supplying PPE to workers

New regulations will come into force on 6 April 2022, extending the duty on employers to provide suitable personal protective equipment (PPE) to all workers, rather than just employees as at present.

The Personal Protective Equipment at Work (Amendment) Regulations 2022 (SI 2022/8) follow the extension of general health and safety protections to include workers, which came into effect on 31 May 2021 (see our previous bulletin). From 6 April 2022, employers must supply PPE to workers as well as employees when there is a health and safety risk. They are not permitted to charge workers for the PPE.

Precautionary COVID testing for critical workers

A ‘precautionary testing scheme’ has been introduced for certain critical workers, starting from 10 January 2022.

The scheme applies to those working in critical national infrastructure, national security, transport and food distribution and processing and who fulfil certain criteria according to their role and working location. The aim of the scheme is to assist in keeping essential services and supply chains running, by identifying and isolating asymptomatic cases of COVID-19 and limiting the risk of outbreaks in these workplaces.

Lateral flow tests have already been supplied directly to workplaces that fall within the criteria, and critical workers will be able (note, not required) to take a test on every working day. The scheme is initially intended to run for a period of five weeks. Guidance for employers was updated on 18 January to include the scheme, identifying the relevant Government departments and the sectors that are covered.

Mandatory vaccination in health and social care sector

New regulations to extend mandatory vaccination to workers in the wider health and social care sector, as well as making amendments to the rules for the vaccination of workers in care homes, have now been made.

The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2022 (SI 2022/2936) were made on 6 January 2022. Certain amendments to the original rules applicable to care homes are introduced under these Regulations:

• Individuals who have not been previously employed or engaged in the care home can now be deployed, provided they have received a single dose of the vaccine at least 21 days before starting work. They are required to obtain a second does within 10 weeks. This change takes effect from 6 January 2022.
• The definition of an ‘authorised vaccine’ will be amended with effect from 1 April 2022, which means that certain vaccinations obtained overseas will be recognised. Those taking place in certain clinical trials also be subject to an exemption from the vaccination requirement.

In addition, with effect from 1 April 2022, the rules on mandatory vaccination extend to those working in a ‘regulated activity’ outside a care home. This will include those working in nursing and personal care and most forms of health care. There are exemptions for workers under 18, those who are clinically exempt (or who are exempt due to a short-term medical condition) and those who have no face-to-face contact with service users, as well as those working under a ‘shared lives agreement’. The new rules relating to clinical trials and new employees referred to above will also apply.

As a result of these Regulations, individuals who are covered by the mandatory vaccination requirements will need to have had their first vaccine by 3 February 2022 in order to have received their second dose by the 31 March deadline.

Phase 1 guidance for employers was published by NHS England in December and deals with planning and preparation for the changes. Phase 2 guidance has also now been published and covers implementation of the Regulations, including the process for employers to follow in relation to health care workers who have not been vaccinated and who do not fall within one of the statutory exemptions.

On 20 January 2022 the Government published detailed operational guidance to support the roll-out of mandatory vaccinations to workers in wider adult social care settings and also produced updated operational guidance for care homes, to reflect the changes outlined above.

Statutory Sick Pay Rebate Scheme

The Statutory Sick Pay (SSP) Rebate Scheme has been reintroduced, which allows small and medium-sized enterprises (those with fewer than 250 employees) to recover up to two weeks’ SSP for each employee who is off work due to COVID-19, including those required to self-isolate. The previous SSP rebate scheme ran from May 2020 until September 2021.

The scheme will apply to any period of incapacity occurring on or after 21 December 2021, even if the period of absence started prior to 21 December. The scheme is due to end on 24 March 2022, which is the last date for claims to be submitted to HMRC. 

Further details are available on the Government factsheet, with guidance on how to make a claim available here.

These articles are from the January 2022 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact a member of Birketts’ Employment Team.