Compulsory COVID testing at work
February 23, 2021
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There have been a number of recent press reports which have suggested that businesses may introduce policies which require their employees, or prospective employees on recruitment, to have the COVID vaccine. This has been described as “no jab no job” and businesses leaders such as Pimlico Plumbers CEO, Charlie Mullins have already said that they will adopt this policy in their business.
I have previously posted on no jab no job policies and cautioned against the adoption of this approach due to concerns that it could be discriminatory – at least until the vaccine was uniformly available to all sections of society (see link here).
In the interim many businesses will wonder how they can overcome the challenge of getting employees back to work as safely as possible when lockdown is lifted. Employers have an obligation to provide staff with a safe place of work and refusing to employ unvaccinated workers seems risky for the next few months. The Government have suggested that vaccinations could be offered to all adult UK citizens by the end of the summer and “no jab no job” recruitment policies could be viable from then (with screening to mitigate risks relating to disability etc). As an alternative employers may adopt a “no test no job” policy which could be implemented immediately. In order to adopt this approach businesses would need to provide workers with lateral flow tests either for them to self administer, testing at work seems unattractive due to delay of up to 30 minutes for the test results. Employers could require employees to undergo COVID testing regularly, possibly daily in some cases and exclude workers with positive tests from the workplace.
COVID lateral flow antigen tests have become available to more employers and these provide rapid results which confirm positive or negative status. The Government have announced that English registered businesses which employ more than 50 employees who cannot work from home can register for free supplies of lateral flow tests here. It is expected that the Government may announce a shift to adoption of lateral flow tests in order to reopen hospitality and major sports events over coming months.
Lateral flow tests are convenient to administer and provide results in approximately 30 minutes. Employers could provide a quantity of these tests to all employees and require them to self-administer the test prior to coming into work, or calling in sick if the test is positive. Theoretically the tests should identify the estimated 33% of infected workers who are asymptomatic, prevent them from attending at work and thereby reduce the risk of the virus being transmitted in the workplace. Employers have a legal obligation to provide employees with a safe place of work and mass testing may well be a reasonable step to complying with that obligation.
Testing would allow employers to remove infected workers from the workplace and remove the risk that they could attend at the homes of customers. A business adopting a no test no job approach may be able to advertise that their employees were tested negative for the virus before being exposed to customers thereby gaining positive PR as well as protecting workers. This type of testing may also be relevant for businesses in the food manufacturing sector where workplace hygiene is seen as critical to product quality. It will be interesting to see which businesses adopt this approach and steal any marketing advantage from their competitors.
In circumstances where lateral flow tests are made available to all employees the risk of discrimination against particular groups of workers could be avoided. It seems unlikely that there would be any objection to the use of lateral flow tests from particular religious or ethnic groups and there has been no reports of any health concerns about the use of the test. The risk of an indirect discrimination claim in these circumstances seems very low.
Any business which wished to adopt a policy of lateral flow testing would need to consider how this would be “policed” with employees. While it is unlikely the employment contracts will contain a term which specifically addresses testing it seems likely that an Employment Tribunal would regard a refusal to take the test as a refusal to accept a reasonable instruction which could be a lawful basis for disciplinary action. We would recommend that businesses should support this by rolling out communication with their employees explaining the need for testing and the importance of testing to employee welfare. It may also be appropriate to identify that a failure to undertake testing, or a failure to comply with sickness policies in the event of a positive test would be considered to disciplinary issues.
The universal adoption of testing seems to be attractive and the major risk with this policy may be the reports of inconsistent test results. Within the past few weeks the British Medical Journal has carried articles suggesting that the government should avoid reliance upon lateral flow tests due significant levels of false negative results in testing. It may be that as lateral flow tests are more widely adopted the technology will approve and the results will become more reliable.
If you have any queries about these suggestions, or the management of employees with the virus please do not hesitate to get in touch with me here.