Can employers demand Covid testing?

The Government estimates that between one in three and one in four people who have coronavirus never show any symptoms but could still be infectious. Rapid tests, also called lateral flow tests, take just 30 minutes to give a result and can help identify people with high levels of the virus who do not have symptoms. Businesses are free to set up their own testing programmes, using this technology.

Government guidance suggests that making the tests mandatory is up to individual employers but there are certain risks making testing mandatory, particularly if the business is not compelled to by a regulatory organisation, such as SSSC or by the NHS.

Depending on the nature of the workplace and the work undertaken, employers can insist that employees have a test, failing which they will dismiss and the type of sector where this would apply includes healthcare and nursing.

Where the business is not operating in a high risk environment it is more problematic to insist on testing – the request has to be proportional. Is it absolutely necessary to the safe operation of the business or the safe delivery of services? If not then it is unlikely that the employer will be in a position to compel employees to have a test.

Where the business wishes to introduce it and hope that employees cooperate, then in the case where they refuse to be tested, communication is the best approach. Employers should explain why testing is being requested and consult over the reasons as to why the employee is worried. Often employees might be reluctant to take a test for financial reasons in that if they were to test positive and forced to self-isolate they might then lose out on pay.

If, following employer testing, an employee tests positive, the employer needs to protect that person’s privacy when other employees are informed. When it comes to data protection laws and communicating cases of Covid-19 within the workforce, there should be in place a process for notifying colleagues of a positive test result, so that appropriate measures can be taken. It is important to consider how much information is provided. The person’s name is not usually necessary information.

It is also worth noting that rapid tests might produce false positives if not done properly which could result in employees being needlessly absent from work. Employers will need to explore how the testing would be carried out and by whom, in order to ensure accurate results.

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