With the UK rapidly rolling out the coronavirus vaccination programme, and recent news from the Government urging businesses with more than 50 employees to apply to the rapid-result COVID test workplace scheme,1 we take a look at employers’ frequently asked questions when it comes to coronavirus testing and vaccinations and the employment law supporting this.
Can an employee be forced to have a COVID test?
In most cases the answer is no, but there may be situations where it may be justifiable to have a mandatory testing policy and take disciplinary action for failure to comply with this policy. The reasonableness of a policy will depend entirely on the circumstances of each particular situation, how the policy has been communicated and implemented, and enforcement would involve detailed consideration of why the employee has refused. The Government have not made testing mandatory for workplaces and it is unlikely to do so given the human rights impact it will have on people
1. What would count as ‘reasonable’ in terms of using a mandatory testing policy?
As with any new policy, the answer to this will be dependent on the business requirements and whether it will be justified to implement a mandatory testing policy. There is no specific guidance, legislation or case law on this area, therefore there is currently no definitive advice. When considering reasonableness, some factors that may be useful to consider when assessing whether a mandatory testing policy should be used could be:
- The type of business operation i.e. a care home would have a stronger rationale for implementing this type of policy on the basis that care home staff work directly with vulnerable people as opposed to a factory or construction site
- Why does the business want to implement this?
- Has the business considered other options? For example, have they considered implementing a voluntary testing policy for a softer approach?
- Has the business discussed this with staff? If not, then the first port of call should be informal discussions with staff on the proposed policies, as with any new policy which significantly affects an employee’s employment, consultation should take place and be documented.
2. Are there data protection implications for employers?
There are very significant data protection issues and proper consideration needs to be given to them and the appropriate measures put in place. A risk assessment will need to be carried out in respect of this as directed by the information commissioner’s office.2
3. Can a business discipline an employee who fails to adhere to a mandatory testing policy?
This one will depend on the facts and circumstances of the case. This is a situation where there is not a ‘one size fits all’ policy. Factors to consider are:
- Can the business document/prove that the testing and its mandatory policy was communicated clearly? Was there consultation with staff? Were there any objections?
- Can the employer evidence that the specific employee in question has received and accepted this policy? i.e. logged no objection to it whether verbally or in writing?
- What are the reasons for the employee’s refusal? Also be aware that an employee is entitled to withdraw their consent to testing in the same way as an employee is entitled to withdraw consent regarding releasing their private medical information with employers. Consider the reason for the change in consent – detailed assessments should be carried out before considering whether this should be pursued down a disciplinary route, as even taking the first steps in a disciplinary process may be viewed as detrimental to an employee and could result in discrimination claims.
4. Can an employee be forced to reveal their COVID test result?
An employer can require an employee to notify them if they have received a positive test result and can ask whether an employee has had a COVID test, but there is no guidance currently available to support the mandatory disclosure of whether a test has been taken or its result (unless it is positive). This may change given the increase in asymptomatic testing. Despite the lack of current guidance and concerns about the infringement of privacy rights, employers could position their policy that employees need to reveal whether they have had a test and its result, but should try to minimise resistance by communicating a clear case of why this is necessary. This should be done as part of consultation with employees and they should take specific advice in handling both objections to the policy and instances where an employee has refused to comply with the policy.
5. Can an employee be forced to have a COVID vaccination?
No and any attempt to make it compulsory by employers is likely to be viewed as unreasonable as things currently stand unless it is absolutely necessary to undertake their role. For example, if they have to travel abroad as a fundamental part of their role and entry to the countries they need to visit became condition upon having the vaccine.
6. Can an employee be forced to reveal whether they have had a COVID vaccination?
Although this seems like a reasonable question to ask, there is no guidance from the Government on how employers should approach balancing the needs of the business with employees’ privacy rights in this area and therefore it is not certain where tribunals will draw the line between a necessary and an unnecessary intrusion of those rights. Employers who feel their business needs to justify asking employees to disclose this information should approach this with transparency and open communication with employees to explain why it is needed. They should ensure they follow advice on formulating and implementing a comprehensive policy, ensure data protection requirements are met, and take further specific advice on risks if they are faced with a refusal to comply.
Our risk management team have created a health & safety hub which hosts a number of helpful free tools to support your business in the resilience and recovery from COVID-19.
- Download the checklist for if an employee tests positive for COVID-19
- Download the COVID-19 business checklist and outbreak procedure