Written by Sam Dow
8th April 2021
The Government recently announced that twice weekly testing will be available to anyone without Covid symptoms from 9th April, and employers across all sectors are now being encouraged to start workforce testing, whether their staff are at home or in the workplace.
However, there has been lots of questions around whether employers can insist on employees taking the tests.
Here’s what we know:
- Can I make workplace Covid testing mandatory?
Current government guidance requires anyone with Covid-19 symptoms to arrange a PCR test and as employers have a duty to protect the health and safety of their employees, it is likely that you can reasonably instruct an employee exhibiting symptoms to be tested.
However, you cannot force employees (without risk) to undergo testing if they are not showing any symptoms. The government recommends that workplace lateral flow testing should be voluntary and sit alongside your other safety measures such as social distancing.
Employers must take reasonable steps to reduce any workplace risks under The Health and Safety at Work Act 1974, so this means you can encourage your teams to be tested to protect themselves and everyone else at the workplace.
- How can I encourage staff to take the tests?
If you decide you want to introduce regular workplace testing, employees are more likely to agree to take part if they understand how the testing process works – here are the main points you should be communicating:
- how the testing process will work and how they will receive their results
- the process to follow if someone tests positive for Coronavirus
- pay for staff if they need to self-isolate but cannot work from home
- how someone’s absence would be viewed if they need to take time off work
- how you plan to use, store and delete testing data, in line with data protection law (UK GDPR).
As a means of encouraging uptake, you may also choose to offer full pay for any member of staff who is required to self-isolate following their lateral flow test, or consider extending sick pay if they cannot work from home.
Changes to pay should be covered in a Workplace Testing Policy – see point 7.
You may also allow employees to carry out their tests at home if they would prefer.
- How do I implement workplace testing?
All employers with staff unable to work from home are eligible to sign up for free lateral flow tests for their workforce. The deadline to register these tests has been extended until 12th April 2021. These tests will be provided free of charge until 30 June 2021. Businesses who are currently closed or still considering if testing is right for them should register so they have the option to order tests in future.
You can register your business here: https://www.gov.uk/get-workplace-coronavirus-tests
As of 9th April, home testing kits will also be available to order for all businesses who employ more than 10 people where on-site testing is not possible.
While the tests are free, you will still need to cover the staffing costs of setting up and organising your own onsite testing or using the services of a third-party provider to run the testing on your behalf. Read more about the options employers can take for workforce testing on the .Gov website.
- What if employees refuse to be tested?
If one of your staff is showing symptoms, they must be tested for Covid to protect the health and safety of other staff, whether a workforce testing scheme is in place or not. In this case a negative result would mean that the employee could return to work immediately rather than having to self-isolate, so if they have refused the test you may be justified in taking disciplinary action.
If one or a group of your staff do not want to be tested you should consider any reason for refusal – some of these may be legitimate. This can be tricky to navigate and will depend on the employee and business and the extent to which the risk of Covid can be managed through other measures, for example, working from home.
Ultimately as an employer you would have to decide if you are prepared to risk disciplining or even dismissing employees who refuse to be tested. We recommend seeking HR support if you find yourself in this situation – contact the Reality HR team.
- What happens if someone receives a positive test result?
Lateral flow tests, currently being offered for free by the government, are for testing people without symptoms only. If a member of your team tests positive from the LF test, they should be encouraged to minimise contact with others and to self-isolate for 10 days.
They will need to take a follow-up PCR test as soon as possible (within two days of the lateral flow test).
If this test is negative, they can return to the workplace. A person who receives a positive test from the PCR test is under a legal obligation to immediately self-isolate for the period notified to them by NHS Test & Trace.
- Are there any data protection issues to consider?
Test data confirming negative or positive Covid testing is special category (or sensitive) data because it is medical information. If you do carry out workforce testing, you will need to store and process the data in accordance with the Data Protection Act and GDPR.
You will need to be transparent with staff about what data is being collected, what it is being used for and who it is shared with. This can be included in a Workplace Testing Policy.
- Should we have a Workplace Testing Policy?
Yes. You will want to explain why you are asking employees to be tested along with the benefits in a detail. This should cover why the business has decided testing is appropriate and what expectations it has of staff both in testing and compliance with other safety measures.
A written policy can be shared with employees as a way of communicating and encouraging testing and also to formally record any changes to any other policies as a result of the testing regime (for example, if sickness policies are being amended). Equally, you can also include a reminder to staff that other Covid-secure measures remain in full force, to address any mistaken assumptions that testing replaces these measures.
As an employer you should keep up to date with latest advice from the UK government and frequently communicate with your employees. If you have any questions about employee testing please contact one of our team at email@example.com .
We will continue to keep this blog post updated as things develop and change.