Government guidance sets out that anyone who has COVID-19 symptoms, however mild, should be tested. As employers have a duty to protect the health and safety of their employees, which includes mitigating the risks of COVID-19, it is likely that employers can justify a mandatory requirement for employees who exhibit symptoms to be tested in order to meet this duty.
However, it may not be reasonable for employers to enforce testing on employees who do not have symptoms, for example mandatory routine testing, out of precaution. In reality, it is likely that most employees will consent to testing if asked anyway, whether they have symptoms or not, in order to protect their own health and the health of others. Employers have to handle this situation very carefully as the processing of health data is treated more strictly under data protection laws.
Despite this, as more of us return to work its important for employers to know their rights and obligations surrounding testing and health and safety. Determining whether the enforcement of testing is a reasonable requirement for those with or without symptoms should always be considered in light of a business’ unique situation, including whether testing is necessary to ensure health and safety in the workplace. For example, it may be reasonable for businesses which are unable to put in place social distancing measures, where staff cannot work from home, in comparison to businesses which are able to mitigate risks with these measures.
If testing is considered necessary for your business, you may seek to make this a contractual obligation. Doing this would mean that employees who refuse testing are in breach of contract potentially entitling disciplinary action.
This is a delicate area and employers should seek advice on this. If you have any questions about workplace testing or health and safety in the workplace, please do not hesitate to contact one of our team.