To increase workplace testing in sectors that are open during lockdown, the Government has expanded the eligibility for joining the ‘workplace rapid testing programme’. The scheme is now open to organisations with 50 or more employees (down from 250 employees previously). Given that this significantly increases the number of businesses that are able to take part in the scheme and access lateral flow tests free of charge, many employers will be considering whether they can make tests mandatory for their staff.
It is likely that the majority of employees will take a test on a voluntary basis. However, if an employee refuses to take a test, employers must carefully consider whether they can demand that they do so. It is clear that employers cannot physically force employees to take a test, but employers must consider whether they can make testing compulsory from an employment law perspective.
All employers have a legal duty to protect the health, safety and welfare of their employees, which includes the obligation to take reasonable steps to eliminate identified risks in relation to Covid-19. Therefore, if an employee has symptoms of Covid-19, it might be reasonable to require that the employee is tested before returning to the workplace, in order to prevent harm to other employees. If an employee has symptoms, it is likely that the requirement to take a test can be regarded as a ‘reasonable management instruction’. It follows that if the employee refuses to be tested, the employer might justifiably take disciplinary action once they have held conversations with the employee to understand the reasons for the refusal.
If the employee is not displaying symptoms, the ability to make testing compulsory will depend on the circumstances of the particular employer, what sector they operate in and whether the risk of Covid-19 can be managed through other measures. If the nature of the work means that the risk cannot reasonably be managed through other measures, such as in a care setting where there is a requirement of employees to be in close proximity of colleagues, vulnerable people and members of the public, then the instruction to be tested is more likely to be considered as reasonable. However, where the nature of the work allows the risk of Covid-19 to be managed through other means, such as social distancing, one-way systems, regular cleaning etc., then it is less likely that an instruction to be tested can regarded as reasonable.
Employers should only take disciplinary action against employees who refuse to be tested where testing is necessary and proportionate to meet their duty to ensure the health and safety of their staff.
If testing is necessary and proportionate, employers should ensure that their approach to testing of employees is fair and that it is not discriminatory. Employers should maintain clear communication with their employees and ensure that any internal policies document the reason why testing is important.
The approach of employers should bear in mind the Government guidance at the relevant time. At the time of writing, there is no guidance in place in relation to the recommendation or requirement of testing in the workplace. However, this might change in the future, so it will be necessary to keep arrangements under review as the guidance changes.
Data protection concerns
Employers that carry out testing in the workplace must consider the data protection implications. Personal data collected about employees’ health, which will include Covid-19 test results, is sensitive and is classed as a ‘special category’ under data protection laws, which requires additional safeguards.
The Information Commissioner’s Office has published guidance for employers in relation to workplace testing. The key guidance states that:
- the employer should carry out a data protection impact assessment before carrying out testing
- the employer should collect the minimum data necessary and ensure it is kept secure
- the employer must be transparent with employees about how and why they need to process their personal data.
Employers should tell employees what personal data they require, what it will be used for, who it will be shared with and how long it will be kept for.
At present, the workplace testing scheme is only open to employees that cannot work from home during lockdown. However, as the UK emerges from the latest lockdown and the economy is gradually opened, it is plausible that the programme might be extended further to encourage more businesses to sign up. The Government’s announcement on 22 February 2021 indicated that it was extending the window in which businesses will be able access the lateral flow tests for free until the end of June 2021. It is therefore important for employers to be clear on their approach to workplace testing.