What we need to know about COVID testing in the workplace

COVID-19 testing in the workplace is being offered to more companies in England, specifically for staff who can’t work from home during lockdown.

This week, it was announced that businesses with more than 50 employees will now be able to access lateral flow tests, which can produce results in less than half an hour. Previously, only firms with more than 250 staff qualified for testing.

By expanding its rapid workplace testing programme, the government hopes it will find more positive cases and reduce the number of infections among workers providing essential public services. These lateral flow tests will be provided to organisations for free until at least 31 March 2021, alongside the rollout of the COVID-19 vaccines.

Around one in three people who have coronavirus have no symptoms and may be unknowingly spreading the virus, particularly if they aren’t able to work remotely. And with the UK facing one of the worst Covid-19 outbreaks in Europe, stemming the transmission in workplaces is key. So what do we need to know about Covid-19 testing in the workplace – and what should employers do if staff aren’t willing to be tested?

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“The government has announced that workplace COVID testing will be offered to more companies in England, for staff who cannot work from home during the lockdown. Businesses with more than 50 employees can now access lateral flow tests, previously only firms with more than 250 staff qualified for testing,” says Kate Palmer, HR Advice and Consultancy director at the global employment law consultancy, Peninsula.

“Although the government is keen to encourage as many companies as possible to implement mass testing if they have at least 50 members of staff, employers should still proceed with caution when attempting to enforce testing requirements. Getting a test is not a legal requirement, and no individual can lawfully be forced to receive one, as such an action could be considered assault.”

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If employers do want to implement a policy making testing compulsory, they should clearly justify why they think this is necessary for their specific company and the roles their employees have. “If they cannot do this, they may find themselves facing costly claims for constructive dismissal at a later date,” Palmer says.

Widespread testing is crucial in getting the number of positive cases under control. However, misinformation and other factors have led many to refuse tests. For some, the threat of not being able to work and the financial impact is enough to avoid testing.

Although COVID-19 doesn’t carry a stigma like several other infectious diseases, some individuals still feel embarrassed if they test positive. If an employee refuses to be tested at work, even if they will receive sick pay if they cannot work, Palmer advises thinking carefully about how to tackle the situation.

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“An employer’s first instinct in this situation may be to go down a disciplinary route. However, they should again bear in mind that they should be able to demonstrate an instruction to take a test is reasonable,” she says. “They should also consider that employees may have personal reasons for not wanting to take a test, and it is highly advisable to have a constructive discussion with the employee in question.”

Instead of enforcement, it will likely be much more effective to outline to staff why these tests are necessary and encourage them to have one when offered. It is also important to make the ethical obligation of testing clear too.

“They should also be reminded that, if they unreasonably refuse to get tested, it may be necessary to prevent them from being admitted into the workplace due to the safety of their colleagues,” adds Palmer.

And if a worker tests positive, the procedure for what should happen in this situation needs to be clearly outlined to employees prior to them receiving a test.

“If they test positive, they should not be permitted access to the workplace and instead sent home to self-isolate in line with current government guidelines,” Palmer says. “Alternatively, the company may consider arranging for them to have a further ACR test taken, which can take more time to come back but can be more reliable than mass testing methods.”

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