NFU guidance on COVID-19 testing and vaccinations for your workforce

D render VIRUS and the inscription COVID-19.

People with COVID-19 symptoms can get an NHS test and are strongly encouraged to do so as soon as they have symptoms.

The NHS Test and Trace service is for those who display symptoms of COVID-19 or who have been advised to take a test by a medical practitioner or public service – it should not be used on a ‘just in case’ basis.

Where a person does not have symptoms, they can be tested as part of community-wide testing operated by the local authority. Details on which local authorities are offering testing can be found here. For more detail on this please contact your local authority.

Testing has also been extended to the workplace, where eligible employers can register for government funded lateral flow tests for asymptomatic workers. More information on this can be found here.

Employers who are not eligible for the government funded tests may still wish to offer a test to workers in an attempt to prevent transmission within the workplace and may choose to fund a privately arranged test. In these cases employers should follow the latest guidance. If you are contemplating arranging your own testing for your employees, whether they have symptoms or not, you are strongly advised to read and follow all of the published guidance.

The important point to remember about testing is that it will only identify whether the individual has COVID-19 at the time the test was taken. It will not confirm whether they have had COVID-19 already and are now recovered, or whether they have any antibodies or immunity.

Can I insist my workers are tested and share their test results?

Employers have no statutory powers to insist that a test is taken in any circumstances, including where a worker has symptoms. In these cases, the workers should be encouraged to follow government guidance to have a test and seek further advice from NHS 111 online.

There may already be, or an employer may look to introduce, a contractual requirement for a worker to take a test but they cannot be physically forced to take the test and will need to consent to the test.

Please contact our Specialist Advice Team at CallFirst if you are thinking about introducing a contractual clause.

Where there is no contractual clause requiring a test, in some cases it may be a reasonable instruction from an employer on the basis of health and safety that a worker takes a test, especially where the worker has symptoms. If the worker does not have any symptoms the employer will need to demonstrate that testing is reasonable under the circumstances considering the nature of the work, and what other measures are in place to ensure the workplace is COVID-secure.

Some workers may be less willing to agree to testing, especially regular testing, for fear that if they do test positive (when they are asymptomatic), they will then have to self-isolate. If they are not able to work from home or there is no entitlement to full sick pay this can have financial consequences for them. There is no obligation on employers to pay full sick pay in the absence of a contractual entitlement, or to top up any entitlement to SSP where an employee must self-isolate, but employees may be more willing to cooperate where there is less financial risk to them.

Throughout the pandemic it has been crucial for employers to communicate with their workers and this is another situation where this is particularly important so that employers can explain why they consider workplace testing to be necessary and workers can raise their concerns and reasons for refusing to take part.

Can I discipline my workers for refusing to take a test or share their test results?

Employees may only be disciplined where it is reasonable to do so. This will entail proper investigation as to their reasons for refusal whilst ensuring there is no discrimination on the basis of any protected characteristic such as race, religious belief, age or disability.

If it can be demonstrated that there is either a reasonable clause in the contract requiring testing, or that the employer has given a reasonable instruction and that the worker unreasonably refused to comply, it may be possible to take further action, including disciplinary action against an employee. In determining what is reasonable, account will need to be taken of the nature of the work and what contact with others the employee has or has had.

Disciplinary action should normally be a last resort and where all other options have been genuinely and fully considered. We are in unchartered territory and at this stage it is unknown how Employment Tribunals will interpret cases. It is therefore important that you contact our Specialist Advice Team at CallFirst for advice on this approach before taking any action.

Disciplinary procedures should not be applied to workers as this creates a risk they could be deemed to be an employee with employee rights and benefits, due to them being treated like an employee. Instead you should follow any applicable workplace rules. Please contact CallFirst if you need further information regarding this.

Do I need to consider any data protection issues if I carry out any workplace testing?

If a worker shares their test results with their employer, this is data relating to their health and would constitute special category data under General Data Protection Regulation (GDPR). This applies to any results from any type of COVID-19 test. This type of data is personal data that needs more protection because it is sensitive.

In order to lawfully process special category data, you must identify both a lawful basis under Article 6 of the GDPR and a separate condition for processing under Article 9. Employers will need to ensure that this is covered by their privacy notices and that a data protection impact assessment has been completed.

The Information Commissioner’s Office (ICO) has published specific employer guidance concerning workplace testing which states that employers are likely to be able to rely on their health and safety duties as a ground for processing special category data in relation to COVID-19 test results where it is necessary and proportionate. Only the minimum data necessary should be collected and it must be kept secure. Workers should be made aware what health data will be collected, what it will be used for, who it will be shared with and how long it will be kept for.

What should I do if a worker tests positive for COVID-19?

For information on what to do if an worker tests positive after any type of COVID-19 test and how this may affect the rest of the workplace, please see Coronavirus: Advice for employers from the NFU’s Specialist Advice Team.

What should I do if a worker refuses to have the vaccine or confirm that they have been vaccinated?

The vaccine is currently being rolled out to the following top-priority groups:

  • people aged 70 and over
  • some people who are clinically extremely vulnerable
  • people who live or work in care homes
  • health and social care workers

    The vaccine cannot be purchased privately by individuals or employers, it is only available through the NHS. Those who are eligible will be contacted when it is their turn to be vaccinated.

    Currently there is no statutory obligation that forces an individual to have the vaccine and there is no indication that this is likely to change in the future. There will be some people who will not be offered the vaccine where it is not safe for them to have it. There will also be some who will refuse the vaccine on the grounds of their religious or philosophical belief.

    As with testing, an employer cannot physically force a worker to have the vaccine or show them proof of vaccination.

    Some employers may decide to introduce a policy or contractual requirement so that those workers who are eligible for the vaccine, are vaccinated and must provide proof of vaccination. In these cases, again the situation is very similar to testing requirements and employers must be able to demonstrate that such a requirement is reasonable under the circumstances before trying to take any action. It is important that you contact our Specialist Advice Team at CallFirst for advice on this approach before taking any action. It is much less likely to be a reasonable instruction where workers have limited contact with others and there are other measures that can be put in place to protect them. Any data held about a worker and their vaccine status will be special category data under GDPR (see above for further information).

    Employers should encourage those who are eligible to be vaccinated. They can help by allowing reasonable time off to be vaccinated. There is no obligation to allow for this to be paid time, but it may help encourage employees to accept the offer of a vaccination. Employers should check any existing policies on time off for medical appointments they may already have.

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