COVID-19 testing is now widely accessible and there are lateral flow testing kits available to purchase. This means that some businesses may be considering testing their employees where they can’t work from home, but is it as simple as that?
As the COVID vaccine is rolled out and the hopes of restrictions easing and businesses being able to re-open are hinged on this, will employers be able to require employees to have the vaccine? Will they be able to refuse to have employees attend work if they have not had the vaccine?
Here, the MIA’s partner Nicky Gleadow at The HR Point shares some thoughts on these areas.
On the face of it, this seems a good idea, especially where employees can not work from home and with rising case numbers. Knowing if employees have COVID or not before they attend work is surely a good thing? Yes, obviously it is but there are some considerations:
- Do you have the right to force employees to take the test?
- How will you administer the test?
- How often should you test employees?
- What will you do if employees refuse to take the test?
- How reliable are the tests?
- Will testing give false confidence that employees are safe?
Do you have the right to force employees to take the test?
Force? no clearly not! I suspect pining an employee down for a COVID test would cause you all sorts of problems. Introducing a testing policy could be deemed necessary under Heath and Safety at Work – you are putting measures in place to protect the health of your employees/customers etc. If you want to introduce workplace testing you need a clear policy that sets out why, how and when.
How will you administer the tests?
Most testing kits will say for professional use. You will need to have trained people to carry out or oversee the testing. This may be your first aiders or other employees. Anyone carrying out or overseeing the testing will need to be provided with full PPE. You also need to have somewhere to carry out the testing that is safe and secure.
How often will you test?
This will be down to you to decide – test kits will cost the business money so a balance of need v cost will need to be made.
What will you do if an employee refuses a test?
Will you let them work? What if they work and have COVID (even if asymptomatic)? Will sending them home be reasonable? If you send them home it is most likely you will need to pay them. Is refusing a test refusal to obey a reasonable management instruction? Can you dismiss employees for refusing a test? The first point is it is important to understand why they are refusing the test, then discuss with them and see if they will agree. You will need to make sure your policy is clear what you will do with the data and what the consequences of a positive test are (requirement to self-isolate and go for an NHS Covid test are most likely the first actions), but also will you pay them for this time?
How reliable are the tests?
You will need to research the reliability of the testing kits you buy, but you need to ensure they are as reliable as possible, a lot of false positives will undermine confidence in the testing, a lot of false negatives will increase the risk of Covid spreading.
Will testing give false confidence employees are safe?
This is a real possibility, employees who know their colleagues have tested negative may become lax in social distancing and sanitising, which in turn could become counter productive to testing in the first place.
There is clearly a lot to consider, and at the moment testing in the workplace may only be necessary for those working in high risk businesses and where employees attending who are Covid positive could put others health at risk. But as we progress through this pandemic this could become required.
Requiring employees to have the vaccine
The rollout of the vaccine is seen as the route out of restrictions and certainly people are going to be more positive dealing with people they know have been vaccinated. But can you require employees to have the vaccine?
Do you have a good reason to require it?
What if people have a genuine reason to not take it?
What can you do if employees refuse to have the vaccine?
Discuss the reasons for vaccine hesitancy, understand why and see they are hesitant. There are anti vaxers out there, this is different to vaccine hesitancy.
You also need to consider availability and that all adults will not have been offered the vaccine until the autumn (assuming we hit the Government’s vaccine roll out targets), so if you dismissed someone now who refused it but allowed others who were not eligible is that fair? Potentially not as older and vulnerable people are being offered it first – so it could be age discrimination and potentially disability discrimination.
Do you only allow people back to work (inline with Government lockdown and rules) who have had the vaccine? This may not be effective if your employees are not on the priority list.
So, what if you have an employee who does not want the vaccine, has no medical reason and you believe you have a good reason to require them to have the vaccine?
You possibly could dismiss, but if they had sufficient length of service or a protected characteristic you may face a claim. What will a tribunal look for? A fair reason for dismissal and a fair process. If your employee works with vulnerable people you might have a fair reason, if your employee works in an office it is less likely. A fair process means, following your dismissal policy and the ACAS Code of Practice.
You cannot make employees have the vaccine, unless in health or care sector where you can make it a requirement as it can be argued it is necessary to protect the health of patients and clients.
The verdict? At the moment it is safe to say it is unlikely dismissal for refusing the vaccine will be “legal” other than in very exceptional circumstances.
If you would like some tailored advice for your business, MIA members can get in touch with Nicky Gleadow via email at email@example.com