Test tubes with labels reading Coronavirus Covid-19

28/01/2021

More and more employers are introducing workplace COVID testing as a way of limiting the spread of the virus and ensuring business continuity, but can such testing be made mandatory or can an employee refuse to participate?

Government guidance on workplace COVID testing states that running a testing programme is a voluntary decision for employers but that, done correctly, it can provide confidence to workers and customers.

However, it quickly goes on to point out that the guidance does not replace the need for independent legal advice or supersede existing legal obligations relating to health and safety, employment law, data protection or equalities.

The fact is that making workplace COVID testing mandatory is a complex business that needs to be handled carefully.

To require staff to undertake testing at work, the employer needs to decide whether doing so is:

  • company policy or
  • part of the employees’ employment contracts.

If it is a company policy, this is not contractual and an employee can refuse to be tested. How an employer deals with an employee’s refusal to participate depends on the reason for the test, for example, is the test essential for them to carry out their role?

If an employer can reasonably justify the need for testing, they can point to the employee’s duty to carry out reasonable management requests in requiring all employees to participate, or the company’s duties under health and safety for all staff.

On the other hand, if workplace COVID testing is added to employment contracts, this does make undergoing testing a contractual requirement. If an employee fails to comply, this could constitute a breach of contract.

Changing people’s employment contracts is not a simple job though. In workplaces with a recognised trade union, the union would have to agree the change. In non-unionised workplaces individual agreement with employees would need to be gained.

Regardless of the route that an employer chooses, refusal to comply with testing would be dealt with under the company’s disciplinary process, requiring the employer to listen to and consider an employee’s reasons for refusal.

Employers who do go ahead with mandatory workplace COVID testing should bear in mind that data collected through the testing must be maintained with the strictest security as, under GDPR, it constitutes special category medical data.

This means that the employer should only keep the data that is absolutely necessary and only for as long as it is needed for its intended purpose. Only those who need to know should be given access to the data and records should be password protected or stored in a fireproof lockable cabinet.

The starting point with workplace COVID testing should always be clear and open communication between an employer and its employees. If employees understand why it is felt that testing is necessary, they may be more willing to take part.

For example, is it essential for their safety following outbreaks in the workplace or for the safety of customers or clients? Is a testing programme being introduced on the advice of an external agency or is it essential for business continuity?

It might also be possible to offer an incentive or bonus system for employees who participate in regular testing.

If you are an employer with questions relating to workplace COVID testing, contact us on 01782 205000 or email enquiry@beswicks.com. You might also be interested in our Beswicks HR service, which provides access to an employment solicitor whenever you need it for a low monthly fee with no need for a lengthy contract.

For employees, a one-hour consultation costs £100+vat and can be carried out by phone or video call.