COVID testing in the workplace: the law

The UK government has rolled out rapid, regular testing for people without coronavirus symptoms and is encouraging local authorities to target people who cannot work from home. We asked two employment lawyers to make sense of the initiative and its potential impact on employers.

1. Is the rapid testing mandatory?

'Even where the testing programmes are in place, nothing suggests it will be mandatory for people in those areas to take the tests; the government’s guidance on asymptomatic testing in schools, for example, is that a test is voluntary for staff as well as students,' explained Steffan Groch, partner, regulatory, compliance and investigations at DWF Law LLP.

That is not to say that individual employers will not make any testing programmes they roll out mandatory. 'Ultimately, this is a decision for that employer,' added Steffan. 'The setting of the workplace is arguably the most important factor in considering the reasonableness of any approach to encourage or enforce mass testing. Employers will have more standing to require employees to take tests where the risk to the virus cannot be reasonably mitigated through alternative means, such as social distancing.'

Even if the testing is stated to be mandatory, employees may refuse to take a test, warned Charlotte Turnbull, head of employment at W Legal Ltd. 'They cannot be forced to do so. In certain circumstances, it may be open to employers to take disciplinary action against an employee who refuses a test, but this will depend on a number of factors.

'A stronger position would be 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,' added Charlotte.

2. Can employers relax their COVID measures if staff are being tested regularly?

No, employers must still ensure that their COVID-secure measures and rules remain in place.

Steffan warned: 'A negative test result does not remove the risk of transmission; someone who has tested negative may still have the disease and be infectious. Employers must remain vigilant and ensure that their COVID measures continue to be adhered to, and everyone must continue to observe good hygiene and social distancing.' 

3. How could mass testing impact your business?

'The expansion of asymptomatic testing will identify more positive cases of COVID-19 and ensure that anyone infected knows to self-isolate,' noted Steffan. 'Employees self-isolating may cause short-term disruption to a business, but awareness of a positive case can help prevent outbreaks at your workplace, which may consequently reduce the overall number of staff absences and the number of people who might fall ill.'

4. What else should you look out for?

Employers must ensure that they are complying with their GDPR obligations relating to the processing of the special category data collected. 

'The Information Commissioner's Office (ICO) guidance states that employers can rely on their health and safety duties as a ground for processing special category data in these circumstances, but that the employer should carry out a data protection impact assessment before carrying out testing and should process employees' health data only if this is necessary and proportionate,' said Charlotte.

A new report from the Office for National Statistics has revealed that transport workers and carers are among the occupations suffering the highest number of COVID deaths. Read more.