COVID Testing in the Workplace: An Employer’s Guide

We’ve looked at whether employers can insist their employees are vaccinated against COVID-19 but what about the issue of testing?

Many employers running essential businesses requiring their staff to present for work are undertaking the added measure of testing for their staff as a means of preventing a COVID-19 outbreak. Many employers feel that they are going the extra-mile and most employees are happy to oblige but is this something the employer can insist upon?

In this article we will outline where to access the appropriate health and data protection guidance and also whether it is ever appropriate to take formal disciplinary action against an employee for refusing a test.

What does the health guidance say?

Here at Avensure we encourage our clients to ensure they are seeking the appropriate medical steer in respect of COVID-19 testing. GOV.UK sets out clear guidance on employers using COVID-19 testing in the workplace.

For more information please visit here.

Are there any data protection implications of COVID-19 testing?

Yes, there are.

COVID-19 testing involves the processing of personal medical information and as an employer you have duty to ensure it is handled correctly.

The Information Commissioners Office has produced a very useful FAQ guide on this (read more).

Can we instruct staff to take a test?

The short answer to the question is technically ‘no’. However, as with all instructions issued from employer to employee, the basis of whether they can be ‘insisted’ upon depends on whether they are reasonable.

When would COVID-19 testing be deemed unreasonable?

Reasonableness is subjective and open to interpretation but deciding what is unreasonable is usually a lot clearer.

If the tests were being imposed daily (causing discomfort), were at the employee’s expense or were being used in place of usual COVID safety measures, chances are the testing is not going to be reasonable or even appropriate.

We haven’t imposed COVID-19 testing for our staff because its expensive and we are following all public health guidance. However, one of our major clients are insisting that our Engineers be tested weekly. I am concerned that if we refuse, we may lose the contract, and this will be a disaster for our business at the moment. Can we insist our staff be tested under these circumstances, our client is very reputable, and will no doubt ensure the tests are legally compliant?

Assuming the tests are carried out correctly and data is processed appropriately will not be good enough. As the employer you will need to ensure this is the case and the best way to do so may be to carry out the test yourselves. If not, then you still need to make sure that your staff and their health data is being appropriately handled and processed.

Let’s assume the above is in hand, it’s likely that most of your staff will agree but as is usually the case, there is likely to be some objection.

If, however, there is a risk that your client is not going to carry out these tests appropriately, this will undermine the reasonableness of the instruction to get tested.

It won’t come as any surprise to know that there isn’t stock answer to this because as always, the individual circumstances will need to be considered. So, the first step is to meet with employee and find out why they are objecting and then seek advice from our experts before taking the matter any further.

As an employer in the care sector, we have been issued guidance from our regulatory body recommending that staff adhere to regular COVID-19 testing. As a care provider we are very careful to ensure that any testing is appropriate, safe and we know of our data protection obligations. However, we have a member of staff who says they have heard that regular testing will negatively affect their health and are refusing. Where do we stand?

The care sector probably has the most compelling argument in terms of COVID-19 testing because your staff are working with individuals who are likely to be elderly and/or clinically extremely vulnerable in some way.

That is not to say that any reasons for objection should not be explored or that the above provisions in terms of data protection etc., are not important but the needs and protection of your service users are paramount.

If someone is citing health concerns as a reason for their objection, it is important we establish where this information has come from. For example, we are seeing an increasing number of conspiracy theories and scaremongering but the best way to counter this is to ensure that as the employer you are proactively disseminating the correct information to staff from reliable sources.

If despite this, they maintain it is bad for their health then you could explore the possibility of obtaining medical evidence from the employee’s GP.

It is vital that advice is sought before going down this route.

Could disciplinary action be taken for someone refusing to take a test?

Dependent upon the circumstances, their reasons for refusal and so on, you may be in a position to consider formal disciplinary action on the grounds of the refusal of a reasonable management instruction, but this should be the very last resort and advice from us must be sought.