Some employers are considering introducing COVID-19 testing in their workplaces and we are receiving queries about this from our clients. Testing in the workplace is a complex question that employers would be wise to think through carefully. We came across this Q&A with Kerry Garcia, Partner, and Michelle Hobbs, Senior Associate at leading UK law firm, Stevens & Bolton LLP and thought we’d share it with you.
Q. What is the current UK Government guidance?
Currently, anyone with symptoms of COVID-19 can access a test for coronavirus from the NHS. However, there is no Government guidance in place that recommends or requires employers to carry out testing on employees, either on a one-off basis when they return to the workplace or as part of any routine testing programme. As such, employers who want to test employees for coronavirus who are not displaying symptoms will need to source and pay for the tests privately. Also see our January update on testing which is here.
Q. Should employers require employees to be tested?
Employers may want to implement a testing programme for a number of reasons, including to reduce the risk of an outbreak of coronavirus in their workforce and to minimise disruption. However, there is a balance to be struck between the employer’s legitimate interests in protecting its business and the health and safety of employees, and the personal interests of those employees.
It has been well publicised that the tests can be uncomfortable and, in some cases, painful (although Alison’s personal experience having recently been tested is that it was fine!). However, some employees may find a requirement to be tested too invasive, even viewing it as an unnecessary and unreasonable infringement on their privacy.
Q. Can employers demand that employees be tested?
Where an employee is exhibiting symptoms of coronavirus, it may be reasonable to require that employee be tested for COVID-19, where the purpose is to protect the health and safety of the workforce. Also, a negative result would mean that employees with symptoms could return to work rather than having to self-isolate for 10 days. In this circumstance, if the employee refuses to be tested, the employer may be justified in taking disciplinary action.
The incentive of an early return rather than receiving SSP for the self-isolation period may prove useful in these circumstances.
The situation is more complicated when employees are not exhibiting symptoms. A reasonable employee is likely to agree to be tested if there is a clear and rational need for it. However, where employees do not consent to being tested, the question is whether a requirement to be tested is a reasonable management instruction. This will depend on the circumstances of the particular employer and the extent to which the risk of COVID-19 can be managed through other measures.
Where the risk can be managed through other means (for example, through social distancing, remote home working or other COVID-19 secure measures), it is more likely to be unreasonable to require employees to be tested.
But, contrast this with a situation where employees have to work in close proximity because of the nature of their work – so social distancing and other measures are not possible – a requirement to take a test may be reasonable to pick up cases as early as possible. The same may also apply if clients are in regular contact with the public.
Q. What action can employers take if employees refuse to be tested for COVID-19?
If circumstances exist that make testing necessary and proportionate, an employer could consider taking disciplinary action against employees who refuse to be tested. The employer should, however, ensure they consider the reasons why the employee refused.
If testing is not necessary or proportionate because the employer’s health and safety obligations can be met through other means (working from home, social distancing and so on), employers would be well advised not to take disciplinary action against employees who refuse. Taking such action could expose the business to the risk of constructive unfair dismissal claims if the employee resigns, or unfair dismissal claims if the employee is dismissed. Put simply, if there are valid and legitimate reasons why an employee refuses, taking disciplinary action could be a risky strategy.
Q. What should employers be mindful of if they do carry out testing?
Data Protection: Employers should be mindful of their obligations under the General Data Protection Regulation (GDPR) and Data Protection Act. Health information is special category data and, as such, employers should ensure they meet the necessary conditions for processing it. The fact that an employee has consented to being tested, or to this information being processed, will not in itself be sufficient.
Helpfully, the Information Commissioner’s Office (ICO) has published guidance for businesses on managing their data protection obligations during the COVID-19 pandemic. This can be found on the ICO’s website and contains a section on testing, which employers should ensure is taken into account.
The guidance makes it clear that employers will need to show that their approach to testing is reasonable, fair and proportionate. It also recommends that employers undertake a data protection impact assessment to help them with determining if their approach to testing meets this threshold.
The ICO also reminds employers that transparency about testing is paramount. Employers need to give their employees certain information before carrying out any testing, including what the data will be used for, who it will be shared with, how long it will be kept for and what decisions will be based on the test result. Employers should consider putting a COVID-19 testing policy in place to help meet this objective; if you’d like some help with drafting a COVID Testing Policy please speak to us.
The ICO link is here: https://ico.org.uk/global/data-protection-and-coronavirus-information-hub/coronavirus-recovery-data-protection-advice-for-organisations/testing/
Discrimination Issues: Targeting specific employees for testing who may be considered at higher risk of contracting coronavirus or experiencing more severe symptoms may give rise to the risk of discrimination claims, particularly if other employees, who are not considered higher risk, are not required to be tested.
But, on the other hand, a requirement for all employees to be tested may disproportionately affect employees in protected groups. Employers should, therefore, ensure that their approach to testing is fair and that any potentially discriminatory effects can be justified as a proportionate means of achieving a legitimate aim.
Overall, compulsory testing for COVID-19 gives rise to a number of issues. Employers need to think these through carefully before deploying any testing requirements, particularly if they wish to implement regular testing for employees without symptoms. A lax approach to introducing testing requirements doesn’t just risk your relationship with an employee but also the business’ reputation and the potential for unfair dismissal claims.
What about employee’s who have been vaccinated?
Your employee(s) may make you aware when they have been vaccinated and you may decide to exclude them from workplace testing but, vaccination does not stop someone being a “carrier” so think carefully before doing so.
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Please note, this briefing is accurate at the time of writing and intended as guidance, it is subject to change as the COVID-19 and Government advice changes; it is not intended to replace advice so please do call us if you have any queries.
