Many businesses have procedures in place in the event of staff members becoming sick. With workplace COVID testing the situation is a little different. Luckily, we’ve compiled the list telling you what’s changed and what needs to be done.
Policy Update to Workplace COVID-19 Testing
The government’s workplace safety guidance does not include temperature-checking or medical testing in the list of steps that employers should necessarily be taking.
However, this does not prevent employers from introducing a workplace testing programme. It must be necessary and proportionate and feature in the risk assessment.
Yes. Government guidance emphasises that employers have a duty to consult their people on health and safety.
Acas’s guidance also recommends consulting with employees as a matter of best practice before introducing any testing regime to cover how it will work, the consequences of a positive test (including pay) and how employee data will be used and shared.
Things to Consider
Before introducing staff testing, an employer should discuss with staff or a trade union about the implementation of staff testing.
During such discussions, as an employer, you should discuss:
- how testing would be carried out
- how staff would get their test results
- the process to follow if someone tests positive for coronavirus
- pay if someone needs to self-isolate but cannot work from home
- how someone’s absence would be recorded if they need to take time off work
- how testing data will be used, stored and deleted, in line with data protection law (UK GDPR)
Remaining transparent will help reassure employees who may feel nervous about the outcome of a positive result. Once discussed, any decision made thereafter should be put in writing and added to the workplace policy.
However, if an employer cannot reach an agreement with staff about workplace testing, it is essential an employer contacts our team so we can advise further.
Lateral Flow Testing
The easiest and non-abrasive form of testing, the lateral flow test, works like a pregnancy test.
The test uses the same technology as a pregnancy test with a test paper that changes colour if a sample taken from the throat and nose indicates coronavirus is present. The swab is placed into a special solution, where the solution is transferred to the LFD. The result becomes visible after 30 minutes.
The lateral flow test is different from a polymerase chain reaction (PCR) test, which is more accurate as it involves a laboratory analysing the sample and providing the result.
Employers can find more information on the frequency of testing and other testing methods available in our previous blog.
Workplace Testing Problems
An employer should use testing in combination and other safety measures such as PPE, regular hand washing and social distancing.
Given the accuracy of tests does vary widely, an employer should view testing as a bolt-on to existing safety measures.
There is a danger that an ill-informed employee, who has received a negative test result, may assume they do not have the virus and not correctly comply with the COVID safety measures. An employee must always act according to COVID safety measures such as social distancing or engage in more risky behaviour outside the workplace.
Employers can prevent this through appropriate messaging about the limitations of the tests themselves and reinforcing the importance of continued compliance with safety protocols.
Waiting upon Results
Where an employee should wait while waiting for test results depends on your risk assessment. It also depends on what other safety measures you have in place. Updated government workplace guidance does state that:
“You should also ensure that an appropriate setting is available for individuals to wait in while their test is processed.”
However, our understanding is that the government’s clinical procedure classes a waiting area for test results is optional. Provided you have appropriate Covid-19 secure workplace measures in place; you could allow employees to return to their work while waiting for test results.
In the absence of workplace testing, any staff without symptoms would continue to work and potentially infect others.
Testing from home
From the 6th of April, the government extended the workplace testing scheme to those companies that do not have the facilities for on-site testing. Lack of facility may consist of a lack of space or lack of multiple site locations.
Instead, the government will provide home testing kits, meaning employees can test themselves before coming to the workplace.
If an employer is worried about employees failing to use the home kits correctly, they can propose virtual testing.
Also, an employer can consult with a third-party company to supervise the testing of employees at home.
Workplace Testing Policy
An employer will need to explain the reasoning behind employee testing and the benefits in a detailed internal communications plan.
The employer should cover why the business has decided testing is appropriate and what expectations it has of staff in testing and compliance with other safety measures. Update the Risk Assessments.
Employers may find it helpful to have a written policy as a communication method with employees. Then, formally record any changes to any other policies resulting from the testing regime (for example, if sickness policies).
Employers should ensure that all other Covid-secure guidelines remain in full force. This will address any assumptions that testing replaces or relaxes such restrictions.
Employees with more than two year’s continuous employment could claim unfair dismissal if dismissed for refusing to comply with an employer’s order to submit to testing.
It would then be for an Employment Tribunal to assess the reasonableness of the employer’s decision to dismiss.
Given that the tests are not 100% accurate in identifying positive cases, employers may struggle to argue mandatory testing is part of their risk assessment.
Although there is no legal requirement to document employee consent for taking a temperature or covid test itself, employers may find it helpful to obtain written confirmation.
The confirmation should include that an employee has read any workplace testing policy or communication and understands them, along with how personal data will be processed and shared.
In terms of reporting results, the government’s operating procedures state:
Once an individual has issued their consent following receipt of a data privacy notice, the organisation must store a copy of the consent for the duration of testing.
Employers who encourage high levels of testing should consider whether their sickness policies could discourage employees from coming forward for fear of a positive result.
Employees who test positive through asymptomatic testing may not fall within your company sick pay policy as they are not absent through illness.
Some companies may have already amended their policies to cover coronavirus self-isolation (including situations for household members testing positive).
However, it is a necessary consideration for businesses that haven’t done so and want to introduce workplace testing.
For organisations offering SSP only, staff may be reluctant to attend voluntary testing if a positive result means receiving only SSP whilst they are self-isolating.
Contact us by calling 0330 400 5490 or emailing firstname.lastname@example.org for more information.
A law graduate from Liverpool John-Moores University who works closely with Wurkplace’s Operations Director to assist on employment law matters. With duties including: Drafting settlement agreements, Overlooking and reviewing shareholder agreement, reviewing contracts for discrepancies, and legal research for employment law issues.