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Coronavirus - COVID-19 testing in the workplace - UK

  • United Kingdom
  • Coronavirus - Workforce issues
  • Employment law

11-02-2021

The UK Government has made it clear that it views COVID-19 testing, alongside vaccinations and existing COVID-protections, to be key to breaking the chain of virus transmission. Workplace testing is likely to play a pivotal role, particularly for those employees who cannot work from home. This week, as part of a drive across Government to raise awareness and encourage more rapid testing for employees, access to free lateral flow testing (which can deliver results in less than 30 minutes) has been extended to organisations in England employing 50 or more people.

We consider below some of the benefits and practicalities for employers who may be considering implementing COVID-19 testing in the workplace.

Also, to help employers respond to the legal and practical issues relating to testing programmes and employee vaccinations, we have online training taking place in early March. Click here for further information.

Should employers adopt a COVID-19 testing policy?

Employers are advised to adopt a testing policy. The growing availability of COVID-19 testing for employees will not only help to mitigate the risk of infection for those unable to work from home but is likely to build confidence amongst employees. This is particularly so in terms of testing being able to identify asymptomatic individuals who may be an unwitting source of virus transmission amongst colleagues.

However, introducing testing presents its own logistical issues and important health and safety, data protection, employment relations, employee communications and other considerations for employers.

The starting point for employers in drawing up a testing policy is to review their health and safety responsibilities. Employers have a legal duty to ensure, so far as is reasonably practicable, the health and safety of employees and other people who might be affected by their business.

It remains important, nonetheless, that employers look upon testing as an available tool in the context of their health and safety strategy, not as a panacea. Employers must also continue to follow Government COVID-secure workplace guidance notwithstanding a testing programme.

Can employers require employees to undergo regular COVID-19 testing?

We remain in the midst of an extremely serious public health crisis, where some workers may be infected but are asymptomatic and COVID-19 tests are becoming more commonplace. As such, employers are increasingly contemplating the introduction of regular testing of employees as a necessary health and safety condition of attendance at work– assuming that tests remain accessible, affordable and rapid.

Before introducing a testing programme in the workplace, employers should review the options available and engage with employee representatives, including recognised trade unions, as appropriate. Whilst employers are being encouraged by the Government to introduce rapid testing, and many may in any event want to support this step, an employer will need to justify that testing - whether voluntary or compulsory- is a proportionate and appropriate response to their identified health and safety risks before embarking upon COVID-19 testing. But being able to justify compulsory testing does not mean that this is necessarily the right thing to do in every workplace. Similarly, regardless of any testing programme ensuring that other COVID secure measures continue to be followed remains essential.

There are also important communication and employment relations issues to consider, which might indicate voluntary testing, or a pilot scheme targeted at critical teams, may be a more appropriate first instance response. Reviewing the support available for those who test positive will also be an important issue and the provision of sick pay for those self-isolating as a result of workplace testing should be reviewed for adequacy.

Within certain sectors, such as health care, care homes or critical national infrastructure, employers will have stronger grounds to mandate testing, given the enhanced need for a safe and well workforce and often little scope for home working. But employers outside those areas may be able to justify the introduction of compulsory testing as a matter of policy (assuming other considerations highlighted above have also been satisfied). Additional relevant factors likely to weigh in the employer’s favour when considering the introduction of testing include that testing is becoming less-invasive, without known side-effects (and will be increasingly so with the advent of simple saliva tests) and that employees themselves have a duty to take and participate in reasonable steps to protect the health and safety of themselves and others.

Employers who opt for compulsory COVID-19 testing will also have to consider the approach they will take if ultimately one or more workers refuse to comply. Timely legal advice should be taken regarding this.

As explained above, arriving at a policy approach to testing requires a wider appraisal of the working environment than health and safety considerations alone. As such, having decided upon an appropriate policy approach, any policy will need to be applied in a fair and non-discriminatory way.

What should be included in a COVID-19 testing policy?

  • the nature of and background to the policy
  • to whom the policy applies
  • an explanation of the testing process
  • provision for exemption from testing
  • the implications of a positive or negative test result
  • how an unreasonable refusal to participate in testing will be approached
  • data protection provision

The privacy issues of an employer-led testing regime should be considered very carefully and are separate from whether or not the employee consents to the testing. Essential considerations will include how the special category data (i.e. the test result) will be lawfully processed and in compliance with company data protection policy. The ICO has issued guidance for employers on conducting testing.