Can an Employee Refuse Workplace Testing?

May 27, 2021

 

The UK and Welsh Governments have recently updated their guidance on workplace testing. Testing is the best way to keep on track for the roadmap out of lockdown and minimise the spread of COVID-19. Since the availability of rapid testing has been widened, there is increased interest from employers about the opportunities for use within the workplace.

However, any policy on COVID-19 testing should be implemented carefully by an employer, as there is no legal requirement that employees be tested to enable them to work and an employee has the right to say no to testing. The use of testing should be reasonable and proportionate having regard to the nature of the employer’s business, work premises, and whether regular testing would significantly contribute to a safe working environment or whether the employer’s other safety measures are sufficient.  

If an employer is considering introducing a regular testing requirement, it should think about the following:

  1. Communicate with employees, discussing practical points like how testing should be carried out and how often. Employees may be worried about what would happen if they tested positive so be clear about how this would affect their leave and pay.

  2. Reassure employees that, due to the legal requirement to self-isolate, absence stemming from a positive test would not lead to disciplinary action.  

  3. Ensure that data protection law is strictly followed, as test results will be considered a special category of data and require additional safeguards.

  4. If an employee refuses to be tested, listen to their concerns to find a way to resolve any issues and consider taking legal advice if you feel that testing should be a requirement of their role.

  5. If a decision is made to implement regular workplace testing, implement a written policy outlining the above issues.

Whether or not an agreement can be reached with employees, it is a good idea to seek legal advice before implementing a workplace testing policy. Please get in touch with our Employment and HR team if you would like further advice.

 

 

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