Can you legally require your staff to take a Covid test?

Can you legally require your staff to take a Covid test?

Some organisations are getting their staff back to the workplace this summer.  However, Covid cases are rising rapidly and employers still have their duty to protect their employees’ health and safety.   Asking staff to take regular lateral flow tests may be part of the organisation’s policy on making the workplace Covid secure.  However, what happens if an employee does not wish to take tests?  Can you enforce this? 

Testing in the workplace is not a legal requirement, but it is widely encouraged by the government at the current time.    Whilst an employer may have understandable health and safety reasons for testing employees, employees may of course regard it as an unnecessary invasion of their privacy. 

An employer cannot force a member of staff to actually take the test (but disciplinary action could be taken if they refuse in certain circumstances (see below).

An employer can put in place a workplace requirement for all staff to be tested for Covid, in certain circumstances.    The employer may be in a stronger position to do so where the workplace is one in which it is difficult to maintain social distancing, but consideration would need to be given to whether testing is a proportionate way to address that risk, taking into account the employer’s health and safety risk assessment.

If the employer considers that it is entitled to process the sensitive personal data (health information), there is a health and safety need to administer the tests and it is otherwise reasonable in the circumstances then it would need to consider how to implement the requirement. An employer could attempt to rely on the request amounting to a reasonable management instruction on the basis that it is an instruction intended to protect health and safety.

However, given the nature of the request and the fact that it is unrelated to the employees’ duties, it is arguable that something more is required to put the obligation on a contractual footing. Employers may therefore decide to introduce the requirement as part of other policy changes it makes to reflect the new COVID-19 working conditions, or even introduce a contractual requirement.

If the failure to consent to testing amounts to a breach of contract (either an express term or the implied obligation to obey lawful and reasonable orders), the employer may bring disciplinary proceedings in relation to the failure.  

Employers should act carefully however, consider everything on a case by case basis and certainly consult with their staff about introducing the testing regime.  This can be a difficult topic and we recommend that advice is taken before proceeding.

You may wish to refer to the ACAS guidance on workplace testing:   https://www.acas.org.uk/working-safely-coronavirus/testing-staff-for-coronavirus 

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If you require advice on any of the above, want assistance with implementing a particular policy or strategy, or have any questions, please feel free to get in touch.  We would be delighted to provide you with a bespoke consultation on your options and a tailored plan to benefit your business.

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