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Can an employer make workplace Covid testing mandatory?

As the majority of UK businesses reopen for the UK Government’s Phase 3 out of lockdown strategy on 17 May, we look at how employers can make the workplace safer with Covid testing, whether employers can make workplace Covid-19 testing mandatory and what they should take into consideration.

 

What is a lateral flow test?

A Lateral Flow Test (LFT), also known as Rapid Lateral Flow Test, is a test for people who don’t have symptoms of Coronavirus to see whether they are carrying the virus. It is self-administered and involves swabbing the throat and nose which is then put into a device that is similar to a pregnancy test. The test can give a result after 30 minutes, indicating  whether Coronavirus has been detected. 

The NHS recommends people to carry out LFTs twice a week to check whether they have Coronavirus as 1 in 3 people are asymptomatic but can still infect others. They’re important because they play a vital role in the UK Government’s reopening strategy and help manage infections.

 

Why does this affect my business?

Whilst there are no specific references as to whether employers should be testing their employees, a Covid testing regime is beneficial for tackling potential coronavirus outbreaks in the place of work (which would result in significant disruption and health risks to other staff and customers).

LFTs are just one of the many tools an employer can use to keep their staff and customers safe. Irrespective of opting in or opting out of lateral flow testing, employers must still follow Government guidance on working safely during coronavirus.

However, there are costs to this. A Government scheme had offered free LFTs until 30 June if businesses registered by 12 April, but the deadline has elapsed. So when implementing LFTs, employers will need to either:

  • purchase tests and set up their own testing; or 
  • pay an approved provider to provide or run the test

In any case, employers should familiarise themselves with Government testing guidance dependent upon the industry they operate in.

To make things easy, use our Prepare to reopen checklist to ensure you’re aware of key Government guidance, the steps you should take and the documents you need to keep your business, employees and customers safe.

 

How do I incorporate Covid testing into the workplace? 

Employers can introduce measures for workplace testing as long as it is considered necessary and proportionate and is outlined in the company’s Risk assessment. 

Workplace testing programmes such as LFTs should be conducted in an appropriate setting. Settings must have suitable measures in place to manage the risk of Covid-19 transmission during the testing process.

Before implementing testing in the workplace, employers should consult with employees and staff (or a recognised trade union or other employee representatives), discussing:

  • how testing would be carried out
  • how staff would get their test results
  • the process if someone tests positive for Covid-19
  • pay if someone needs to self-isolate but cannot work from home
  • how someone’s absence would be recorded if they need to take time off work
  • how testing data will be used, stored and deleted, in line with data protection laws

Any decisions reached after such discussions should be recorded in writing (eg in a workplace policy) and made in line with the employer’s existing policies.

 

Can I make LFTs mandatory for all my employees? 

Currently, there is no law requiring staff to be tested for Covid-19 and in many situations it may not be necessary. As a result this remains a grey area and employers must consider potential legal issues that could arise, such as Data protection.

Employers can process health data if there is a lawful basis to do so but must conduct a data processing impact assessment (DPIA) before setting up a workplace testing site. Data concerning health is categorised as special data and the DPIA should detail why such processing is needed. All employers are required to conduct risk assessments in the workplace, therefore most employers that are processing health data can use their health and safety obligations to justify processing this type of information. 

ACAS advises employers to consult with staff on any proposed testing programmes, consequences of a positive result and any other concerns. 

 

What can I do as an employer to mitigate the risk of data protection issues arising? 

Key steps you can take include:

  • be transparent with employees and communicate what you will do with their data
  • assess how long data should be stored and do not retain information for longer than necessary
  • if you use a third party service provider, review provisions in the agreement on how they will process data
  • produce a bespoke privacy policy to cover the data from testing to inform employees

The ICO has further guidance on workplace testing and data protection.

 

My employee refused to take a test, what do I do? 

All employers have a legal obligation to protect the health and safety of their employees, this includes taking reasonable steps to reduce the risks of Covid-19 in the workplace. If an employee refuses to take a test, employers must carefully assess if they can demand an employee to do so. For example, if an employee is displaying symptoms of Covid-19 an employer can reasonably require that person to take an LFT to not harm other employees. 

If your business operates in a sector where risk cannot be managed via other measures, such as a care home where face to face contact is necessary, then testing could be considered reasonable – even if the employee is not displaying signs of coronavirus. 

Employers should only consider disciplinary action against an employee who refuses to be tested where testing is necessary and proportionate in order to fulfil their duty to ensure the health and safety of their employees.

 

I’m an employee and I don’t want to do the test, what should I do?

If you are dismissed for refusing to take an LTF then you can make a claim to the Employment Tribunal. Employers may find it difficult to justify that testing is mandatory as part of their Risk assessment as the results of LFT are not error-free. 

For more information, read our guide on unfair dismissal and wrongful dismissal.

 

What should my existing policies contain to tackle workplace testing?

If you are conducting workplace testing, you should have policies in place that explain why you are asking employees to be tested along with the benefits of this. You should address why you are taking such measures and highlight the expectations of both staff and the employer. 

You may wish to consider updating your Sickness policy, and Health and safety policy to address niche situations where, for example, an employee may be sent home to isolate due to a positive test result and how that may affect their sick pay entitlement. This will help inform employees of LFTs more generally, put any concerns they have at ease (and in writing) and provide an explanation as to why you are rolling this strategy out.

Hina

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