With the emergence of the new Covid-19 variant many employers will be revisiting their approach to the pandemic and, in particular, looking at ways to bolster their risk assessment procedures.
If there is a need for a physical presence at a work venue, a key question is whether Covid-19 testing should be introduced?
The desire to introduce Covid-19 testing will usually arise out of a genuine concern for the health of those employees who must attend the workplace, as well as any other visitors to the site. Of course, it is also relevant from a legal perspective, since an employer has a statutory duty to ensure the health, safety and welfare of employees, which includes providing a safe place of work.
For these reasons it can only be right that an employer should be "permitted" to introduce testing procedures, where they are deemed to be appropriate and the right safeguards are put in place. Indeed, towards the end of last month the government announced that it would be rolling out its asymptomatic testing programme across the country. A key part of this will involve encouraging the scale up of "on-site" workforce testing, which has been piloted by 15 large operations in the food, manufacturing, energy and retail sectors, including Octopus Energy and Apetito/ Wiltshire Farm Foods.
However, employers should only proceed once they have considered applicable employment and privacy rights and obligations. This article considers some of the key employment law questions.
The relevant privacy aspects are set out in our separate article, which can be found here.
IS IT POSSIBLE TO INTRODUCE A COVID-19 TESTING PROCEDURE IN OUR WORKPLACE?
Requiring employees to take a test to determine the presence (or not) of a health condition, is undoubtedly invasive and ordinarily this would be highly unusual.
Whether the pandemic means that testing (mandatory or otherwise) is appropriate, will depend on the features of the workplace. This will include the level of confidence in any existing measures to minimise the spread of Covid-19, and the level of risk, which may be linked to the nature of the work and frequency of contact with others, including colleagues and members of the public.
An employer would be expected to thoroughly consider all the relevant circumstances, in order to arrive at a reasoned view as to whether testing was necessary. The thought process should be documented in a written impact assessment, which can then serve as evidence of the basis of justification, should such a proposal go ahead.
So what exactly should an employer consider?
- Is there a need for the
employees to be in the workplace at all, or can their work be
performed remotely? Insofar as the thought process is
concerned, this necessarily needs to be the starting point.
Even if working from home has previously been considered and ruled out on objective grounds, it is a good idea to revisit the decision in light of current government guidance, and if still not possible, to document the reasons.
- Why, in particular, is
testing considered necessary? Invariably, the reason for
testing will be to ensure a safe place of work. However, simply
stating this is the aim is unlikely to be enough. An employer
should also think about whether testing is actually going to help
or further the aim.
If we consider the example of a warehouse operated with a skeleton staff and good social distancing and hygiene measures in place, will testing improve safety and if so, is the employer of the opinion that the level of improvement sufficiently warrants it?
- What are the alternatives? Where testing is considered necessary, are there less intrusive measures that would achieve a similar result? For example, does it need to be full testing or would asking employees to fill out regular symptom questionnaires suffice?
- Why is it necessary to
introduce testing now and how long is the measure likely to remain
in force? This will involve thinking about why testing is
being considered at this point where previously it was not –
potential reasons might include a run of cases in the workplace,
possible issues with the effectiveness of existing measures, or
heightened concerns regarding the more contagious variants.
It is also important to provide for a regular review process – the key being that the proposal is due to extraordinary circumstances and that safeguards are in place to ensure the testing is only carried out for as long as it is appropriate.
The answers to these questions will no doubt include an element of subjectivity and speculation. However, the purpose of the exercise is to properly consider all the relevant circumstances in order to make (and document) a reasoned decision.
Is it possible to make the testing procedure mandatory?
Subject to having a reasoned business case, it is ostensibly possible and potentially justifiable to introduce a mandatory testing procedure. However, in the absence of the government mandating compulsory testing of the population as a whole, enforcing such a process (where an employee refuses to take a test) is not necessarily straightforward.
In some cases, disciplinary action might be warranted, but as is the case with all disciplinary scenarios, this will be fact specific and will come down to whether the requirement to test was a reasonable instruction in all the circumstances. For example, taking disciplinary action against an employee who has regular contact with members of the public might be easier to justify because the area of risk that the employer needs to manage is wider. On this point, with the government now advocating widespread workplace testing, it may arguably be easier for an employer to demonstrate that asking an employee to take a test, is a reasonable request. If so, the balance would then seem to shift to the reasonableness (or otherwise) of the particular employee's refusal, in terms of deciding if disciplinary action is warranted or not.
Employers should also be wary of potential discrimination – for example an employee that suffers from anxiety may have heightened concern or fear about taking a test. An employer may need to consider reasonable adjustments to its arrangements for the testing process and should take all personal factors into account before considering any disciplinary action.
Many employees will see the introduction of testing as a positive step. Whilst this may not be sufficient in all cases, as an initial step some employers might consider the introduction of a non-mandatory testing programme and engage with the workforce to get the majority "onside" by highlight the benefits of this for all. Of course, it will still be important to be honest with employees that mandatory testing may become necessary in the future and to revisit the written impact assessment as appropriate.
Can we test some employees and not others?
This will depend on the reasons. Where some roles are higher risk, in terms of chances of exposure to the virus and/or levels of contact with others, limiting the testing accordingly may serve to strengthen the overall justification.
However, employers should be mindful of unintended consequences. For example, a well-meaning employer might consider it reasonable to test only those employees considered at high risk from complications should they contract Covid-19. On scrutiny, this wouldn't serve the aim of providing a safe system of work in the first place (since those who are most vulnerable would be better protected if all employees were tested) and could also amount to age, disability or even pregnancy-related discrimination.
What should we tell our employees?
Clear written information should be given to employees. Of course, this will need to explain the mechanics of how the testing process will work, including the particular testing method and frequency of testing. However, it can also be used to highlight the positive aspects of introducing such a process from a safety and wellbeing perspective, and to provide assurance that the testing is a temporary measure only
There is no set format for providing this information. The required information could be contained in a general staff "comms" document. Certain information related to the data implications must also be provided (see our article dealing with the privacy related aspects of testing).
A good process will also allow some time for consultation with employees (or representative bodies if relevant). However, in the interests of safety it is recognised that in some cases this process may need to be limited, for example allowing employees a 7 day window to raise any concerns before commencing the process.
The concept of introducing health tests would, in normal times, sit uncomfortably. However, the impact of the pandemic on the working world is both unprecedented and unusual. Clear and timely communication setting out an employer's reasoning should serve to highlight the benefits of testing for the good of the workforce and their families as a whole. Whilst some pushback is to be expected, testing may also be welcomed by many employees as a positive development.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.