To test or not to test? And other continuing implications for employers during the COVID-19 pandemic

With the COVID-19 pandemic continuing to cause pressures across sectors and around the world, attention is gradually beginning to turn to the implications of a more widescale return to the workplace, including the wider rollout of rapid response testing and the encouragement of employee vaccinations. For the manufacturing industry specifically, a significant focus will be ensuring the work environment is COVID secure, particularly as the workplace is likely to see the re-introduction of significant numbers in the coming months, some of which may not be directly employed and instead employed by third parties. We anticipate that in the coming months, a significant question for employers in the manufacturing industry will be how to manage this, particularly where contractors are regularly engaged. Employers will need to give thought to the policies they introduce regarding rapid testing and their position concerning vaccination.

Whilst there is ultimately no easy answer to this, the key to managing issues regarding testing and vaccinations is to be proactive in anticipating them and putting a robust response in place to effectively manage them.

What problems may occur with rapid response testing and vaccinations?

A key factor for employers will be ensuring the legal duty to protect the health and safety of their employees is maintained. As part of this, employers need to ensure that their work premises are 'COVID-19' secure and all reasonable measures are being taken to reduce the risk employees may be exposed to, particularly once there are more employees in the workplace at any one time.

To address this and combat risk, one of the most common approaches has been for employers to introduce a policy of rapid response testing or 'lateral flow testing.' As part of this, employees are required to show they have a negative COVID-19 result before they enter the workplace. Whilst there is some discussion around the reliability of these tests, many see it is an effective way of reducing the risk of COVID-19 and demonstrating a commitment to ensuring the safety of employees.

If employers choose to make testing mandatory before entry to the workplace, one issue that must be considered is what to do if employees refuse to undertake a test. As rapid response testing is not mandatory, consent is required from the person you are requesting to take a test. This ultimately has the potential to leave employers in a difficult position especially if the refusal is linked to a protected characteristic, such as religious belief. Should this happen, employers will need to carefully consider their next steps and how they proceed. Employers should take care with their response, making sure to balance their commitment to equality of treatment and data protection with the need to protect the health and safety of their employees.

If testing is included as part of a risk assessment, as well as the need for direct employees to consent to test, any contractors entering the premises will likely need to be tested too. With direct employees, employers have a much greater degree of influence, allowing testing to be encouraged, or unreasonable refusal to be addressed, however those employed by third parties will potentially not be expected to adhere to the same standards. Employers have no direct control over these individuals, so will need to consider other ways to ensure that testing is encouraged, which could present difficulties. We recommend that you engage with any third parties and their employees about the policies you have before engagement and entry to the workplace, to ensure that potential issues are addressed proactively rather than reactively.

Further, as the vaccination rollout continues across the country, we are seeing increased discussion over the need to vaccinate and what impact this will have on the workplace. Again, we expect a challenge for the industry will not only be employees who refuse vaccination but also those who are not directly employed. As with testing, individuals must consent to vaccinations and employers cannot require employees to have a vaccine when offered, it is instead suggested that the focus for employers should be on education about the benefits of vaccination. This is because some may object to vaccination on personal grounds, such as their health or religious beliefs, which again may give rise to discrimination issues if these grounds are not offered proper consideration. Similarly, business owners will experience challenges in trying to exert influence over those employed by third parties, though again open communication with third party employers remains key to tackling these issues.

What do we need to consider?

With rapid response testing and vaccinations becoming more widely available, we would encourage employers to begin constructing a proactive response to the employment law issues this may give rise to.

We would suggest in starting this, employers should first give thought to the legal obligations it has in respect of its employees and assess any risks that have the potential to undermine this obligation. A clear risk is the lack of control employers may have over those who may regularly work on their business premises but are not directly employed. In addressing this, it is essential to ensure that steps are taken to mitigate these risks. This may mean putting alternative procedures in place and/or additional protection if an employee or third-party employee refuses a test or vaccination.

Similarly, these legal obligations have to be balanced with the need to be mindful of issues surrounding equality and diversity in the workplace, ensuring that employees and third-party employees are not discriminated against, where they have objected to a test or vaccination on the grounds of a protected characteristic. If this is not sufficiently handled, employers and the businesses themselves can be put at increased risk of discrimination claims.

Finally, employers and business owners need to give thought to the data protection implications of the policies they implement, particularly as the information collected is likely to be sensitive and give rise to legal obligations under the General Data Protection Regulations (2018).

Whilst the employment law implications of rapid response testing and COVID-19 vaccinations form part of an ever-developing discussion, being proactive about these issues and the plans in place to combat these seek to significantly reduce the risks employers are exposed to.

If you would like support with employee issues regarding rapid response testing and/or COVID-19 vaccinations, please do not hesitate to contact Imogen Templeman or by telephone on 01772 220228.