In addition to the PCR testing by the NHS and community-wide Lateral Flow Device (LFD) testing operated by the local authority, testing can also take place within the workplace.
Some employers will make LFD testing available to their workers or many will encourage them to make use of the widely available home testing kits. More details on rapid LFD tests are available here.
Employers who do provide workplace testing 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.
Can I insist a worker receives the vaccine?
As with testing, most employers cannot physically force a worker to have the vaccine or show them proof of vaccination. However, as from 11 November 2021, those working in care settings that are regulated by the Care Quality Commission (CQC) in England will be legally required to be fully vaccinated, unless they are exempt.
Employers can strongly encourage their workers to get fully vaccinated and this can be done as part of the steps an employer should take towards managing the workplace risks as part of their obligations under the Health and Safety at Work Act 1974.
Employers 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 workers to accept the offer of a vaccination.
In addition, consider how else you are able to support your workforce, what your position will be with regards to paid time off if they are not well after having the vaccine and whether you will include vaccine-related absences in absence records or towards any trigger for absence procedures.
Employers should check any existing policies on time off for medical appointments they may already have. Acas has published guidance for employers on ‘Getting the coronavirus (Covid-19) vaccine for work’, the aim of which is to “help employers support staff to get the vaccine, maintain good workplace relations and avoid unnecessary conflict”.
Can we require all new starters to have received the vaccination as a condition of employment?
In the majority of cases there will be little risk of an unfair dismissal claim, but candidates and new recruits still have the right not to be discriminated against because of protected characteristics, such as a disability or religious belief.
Therefore, employers will still need to properly identify the reason why a person has not had the vaccination and ensure if the role is not offered to them or is withdrawn, that this is not due to a protected characteristic and exceptions to the employer’s requirement are made where necessary.
What should I do if a worker refuses to have the vaccine or confirm that they have been vaccinated?
Some people will not be offered the vaccine where it is unsafe for them to have it, and others will refuse the vaccine on the grounds of their religious or philosophical belief.
It is essential that an employer clearly identifies which of these categories their worker falls into as part of an investigation before taking any action. Where a person has been advised they should not receive the vaccine, there should be no adverse consequences for them in the workplace.
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, 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 seeking to address. 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.
It is important that you contact our Specialist Advice Team at CallFirst for advice on the approach before taking any action.
Any data held about a worker and their vaccine status will be special category data under GDPR (see above for further information).
If you have a worker who refuses to or is unable to have the vaccine, then you should consider the results of your COVID-secure risk assessment and any vaccination policy you have. Consider if it is still safe to allow these people into the workplace, or if other measures are necessary such as separate working areas and/or regular workplace testing.
For more information on this please contact our Specialist Advice Team at CallFirst.
As with testing, an employer cannot physically force a worker to have the vaccine or show them proof of vaccination.
Should we have a vaccination policy?
It is not a legal requirement to have a policy, but it is advisable to do so where incentives are being offered and/or there is an expectation that workers are vaccinated. A policy can help in explaining the business’ requirements and objectives in relation to the vaccine.
Any policy must comply with any existing disciplinary and grievance policy and should also not fall foul of any discrimination laws.
Is a worker entitled to time off during working hours to receive a vaccination?
There is no statutory right for time off or to receive pay if time is given. Employers should consider any existing time off for medical appointments policy they have, including any arrangements in place though custom and practice.
Ideally, information on taking time off and any right to pay or requirement to make up any time should be included in a vaccination policy.
If an employer requires or is strongly encouraging their workers to have the vaccine, it would be reasonable for the worker to receive paid leave in order to have their vaccine.
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