COVID-19: the impact on employees

It seems likely that COVID-19 will, whether in its current form or some mutation of it, be part of our lives for some time to come. The vaccine roll out has been done at some serious pace, but as always, for smaller employers there are perhaps more questions than answers.

Helpfully, Acas has updated its working safely guidance to provide further information about workplace testing and vaccination for COVID-19.

The page entitled Testing staff for coronavirus contains a new section setting out what it suggests would be good practice for employers to agree with staff if an employer plans to test employees or workers for coronavirus.

They say it is good practice to discuss how testing would work, how staff would get test results, the process to follow if someone tests positive, pay for staff if they need to self-isolate, and data protection issues.

After any discussion, any decision should be put in writing – perhaps in a discrete policy.

However, the more fundamental question that keeps being asked is:

Can an employer require or force employees to take a COVID-19 test at work or before returning to work?

In January 2021, the Government confirmed its intention to make rapid, asymptomatic testing more widely available in the community and workforces, using what are known as lateral flow device (LFD) tests.

On 6th March 2021, the Department for Health & Social Care announced an extension to the scheme, so that all businesses can now register for LFD rapid testing. Businesses need to register before 31st March and tests will be free until the end of June. 

It would seem inevitable that the roll out will at some point enable smaller employers to carry out LFD tests.

The Government guidance advises employers to:

  • Think about the extent of the programme; who will be tested, the frequency of testing, how test results will be used and what happens if someone refuses testing.
  • to consult with staff associations or unions before implementing any policy, and at least discuss the proposals with staff being “enforcing” new rules.
  • Be aware of their data protection obligations in processing data.

The Government certainly want SMEs to carry out asymptomatic testing of employees, but can you as an employer legally do it?

Of course, there are understandable health and safety reasons for testing employees, but employees may regard it as an invasion of their privacy. The testing process can be uncomfortable and they may feel it is unnecessary where they are displaying no symptoms and *conspiracy theory hat on* there is no real evidence of asymptomatic transfer of the virus.

Clearly, in an workplace where social distancing is difficult to apply, the employer may have stronger grounds to require testing.

The key question is this – is testing a proportionate way to manage the risk, taking into account the employers health and safety risk assessment?

It has been suggested that a refusal to take a test would amount to a breach of failing to follow reasonable management instruction and thus become a potential disciplinary matter. Personally, your author would steer away from that angle as it is asking for trouble. While failing to wear a mask at work was deemed a fair dismissal, that case had its specific reasons, and of course wearing of face coverings in certain places is a legal requirement.

So to answer the question, yes it is probably lawful for testing to be required by an employer but there are certainly issues to consider before jumping straight in.

The second question that is constantly being asked right now is:

Can an employer force its employees to have the COVID-19 vaccine?

This is a less straight-forward question; the views differ and so what follows is perhaps a bit of opinion mixed with some law.

The Government line of course is that it does not propose to introduce mandatory vaccines but does encourage everyone to have one. Indeed, there is legislation that specifically stops people from being forced to have a vaccination or other medical treatment.

So the starting point is that the UK Government does not have the legal power to enforce vaccinations. And thus, it would seem unlikely that employers could compel its employees to be vaccinated too.

The new Acas guidance referred to above include a page on Getting the coronavirus vaccine for work and it says that “In most circumstances, it’s best to support staff to get the vaccine without making it a requirement.”

Of course, some employers, having carried out a H&S risk assessment, may argue that compelling vaccinations is justified by the business needs – e.g. for health care and frontline workers.

Most employment lawyers think that a mandatory policy could lead to claims being made, and indeed, Acas recommends that “If an employer feels it’s important for staff to be vaccinated, they should work with staff or the organisation’s recognised trade union to discuss what steps to take”.

Acas also say that if someone is concerned about being vaccinated, the employer should listen to their concerns and be sensitive towards individual situations – for example, some people may have health concerns, and others may be protected from discrimination.

Ultimately, though, I feel that a requirement to have a vaccine or not will be fact specific and it would not be recommended for all businesses to start to adopt a “no jab, no job” policy.

That said, encouraging staff to get vaccinated seems the most appropriate option and why an employer would want to “force” staff to do anything is beyond me, but then this isn’t a piece on draconian management skills.

Steven Mather
The Business Bulletin

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Steven Mather

Steven Mather is a Consultant Solicitor and specialist in advising SMEs on all legal issues affecting their business – from contracts, employees, intellectual property or disputes. He qualified as a lawyer in 2008 and in January 2020 set up on his own in order to deliver extremely high quality & efficient services to SMEs.

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