CIPD experts, leaders and practitioners tackle the key issues and questions around the pandemic
Q: What plans should employers make surrounding COVID-19 vaccinations?
As COVID-19 vaccines are approved and rolled out, the NHS are delivering a mass vaccination programme.
Employers should consider having a policy around healthcare and vaccinations, including COVID-19. Employers may need to revisit the policy as extensive and updated guidance emerges from the government. The following basic principles should be taken into account:
- key workers, the clinically highly vulnerable and the elderly are receiving the vaccine first but throughout 2021 both vaccinated and unvaccinated people will be mixing in the community and in workplaces
- the extent to which any vaccine will provide long-lasting protection against COVID-19 is unknown but re-vaccination will be needed
- it is likely to take some time to vaccinate and revaccinate the entire UK population so risks will remain for some time.
Employers should prepare for what to do about employees who refuse to be vaccinated and many other issues.
In the UK generally whilst vaccination is encouraged it has not previously been mandatory for other vaccines such as flu and this is also the case for COVID-19. Some employers might have a right to discipline and dismiss employees who refuse vaccination based on contractual powers in their employment contracts if these contain widely-drafted medical testing and treatment clauses. So, in theory, forcing staff, especially new recruits to be vaccinated could be possible if it was written into their contracts. However, this will be unusual. Even with a clause, injection cannot be given without consent. So, employers may be faced with staff coming into work who continue to refuse vaccination. The issues for employers to consider are similar to the existing issues relating to flu jabs (see our FAQ on this below).
Employers cannot insist on vaccination without an employee’s consent as forcing a reluctant employee to have a vaccination would be a criminal assault. Employers’ encouragements may range from detailed medical explanations to saying employees can't attend the office or certain events if they continue to refuse immunisation.
In some sectors such as health care settings staff may accept a workplace vaccination programme as staff are under more pressure than others to get vaccinated against COVID-19. Such workers are already used to annual flu vaccination to protect vulnerable patients. It is at least arguable that staff who refuse the vaccine should be moved away from sick patients. Offering vaccination to all health and social care staff also helps comply with duties under the Health and Safety at Work Act (1974). Although there are other high risk workplaces such as meat-processing plants.
In other settings some staff may refuse. The best course of action will likely be for employers to encourage staff to be vaccinated and publicise the benefits. Employers can also argue that they have a duty to protect the health and wellbeing of other employees.
If employers try to make staff vaccination a compulsory condition of employment the legal problems are:
- Potential personal injury claims if vaccine side effects appear later on.
- Discrimination claims on grounds of disability or religion and belief or pregnancy. Pregnant women are not all recommended to have the vaccine unless they are at particular risk. Some vaccinations may contain gelatin from pork, which are avoided on religious grounds, but this does not apply to any of the available Coronavirus vaccines. However, anti-vaxers may try and establish a philosophical belief worthy of protection and although there are legal arguments to raise to counteract this, being a test case is something employers will wish to avoid. Others with some health conditions such as weakened immune systems, certain allergies or phobias may have issues with vaccination.
- Potential unfair dismissal claims or constructive unfair dismissal if employers dismiss or threaten employees because they refuse to take a vaccine.
Some of the above reasons make it harder for employers to insist staff have vaccine passports too. Alternatives such as testing are available which makes it harder for employers to justify mandatory vaccination or passports. On the other hand employers may face pressure to refuse to employ un-vaccinated individuals either from other employees or from the scientific community and may decide to impose a compulsory policy and run the risk of potential claims from the minority of people. Some employers have already indicated that they will require employees to be vaccinated, and may not keep on those who don't comply. Others insist all new staff must be vaccinated although this is easier to justify in the health and care sector.
Overall it is safest for employers to follow government and NHS professional advice as the vaccination programme is rolled out and monitored. The government are reviewing whether to introduce a vaccine certification system which may be accompanied by guidance for employers as well. In some cases requiring workers to be immunised may trigger refusals and be counterproductive amongst those who are resistant to being told what to do.
Offering private vaccines for staff
There is no obligation to offer vaccination, but employers may eventually be able to pay for vaccines privately. This may be more likely shortly after the state programme is rolled out. Supply is likely to be an initial problem as governments will probably absorb most of the available stock.
Once supply improves, repeat vaccinations could be offered by employers. These will be needed, as it is not certain how long immunity lasts after the initial vaccine. At some point private vaccination can be offered as a regular work benefit (like the flu vaccine) once issues with supply become less acute, although this is likely to take some time.
Employers should also consider the following:
- Communication with employees about the benefits of immunisation.
- The possibility of asking staff who have not had a COVID-19 vaccine to work from home. (Other situations may adopt this strategy, such as passengers boarding planes or those attending sporting or other events needing to prove they have been vaccinated first.)
- Policies should also include information on hygiene measures to prevent the spread of COVID-19 and employers should send reminders of those measures at the start of each season.
- The current emphasis on home working and practical aspects such as masks and hand sanitisers whilst immunity and vaccination become more widespread.
Asking employees if they have been vaccinated
In the UK employers have a duty to provide a safe place of work. Employers who want to ask about vaccination can explain why and can argue that to protect other workers and enable the safest operation of the workplace it is necessary to request information on whether employees have been vaccinated. Matters to bear in mind include:
- Whether employers are prepared to risk disciplining or even dismissing employees who simply refuse to explain their vaccination history, or what would employers do for those who refuse comply with any vaccine requirement.
- What procedures employers have for data protection - handling records of vaccination and immunisation status and history fall within the Data Protection Act’s sensitive data rules. These rules do not prevent the processing of workers’ health information but do limit the processing, collection and use of such information about a worker’s physical or mental health or condition.
- What requisite health and safety steps will employers take for those employees who refuse to say if they have been vaccinated? For example, to protect other employees should remote working be considered for those employees?
- The extent to which the vaccine has become widely available to the workforce. Potential shortages in supply in the early months of the vaccine, may make it difficult for employees to obtain a vaccine in the short term, so they have not been vaccinated due to reasons beyond their control.
With regard to the vaccines scientific monitoring and research is ongoing, especially with respect to certain groups of people such as pregnant women and those with allergies. The Medicines and Healthcare Regulatory Agency (MHRA) has confirmed that the first COVID-19 vaccine (Pfizer-BioNTech) is safe and effective for the immunisation programme.
However, more data is being considered before finalising advice on vaccine safety during pregnancy and breastfeeding. For further detail see our FAQ on supporting pregnant employees below.
Similarly, out of the thousands on vaccines already distributed there have been extremely small numbers of mild allergic reactions. These only arose in people with a history of serious allergies (who carry adrenaline pens) and these people recovered rapidly. However, employees with a history of significant allergic reactions should delay having the Pfizer/BioNTech Covid jab until further medical evidence is available. The advice is likely to differ as different vaccines are approved and distributed.
As the position evolves employers should take great care to be aware of the current position and should protect both pregnant women and those with a history of extreme allergic reactions.
Q: What do employers need to know about vaccine certificates or passports?
The government is considering whether to introduce a vaccine certificate or passport system. A review of whether such a system is necessary is being undertaken and the government will make recommendations before step four of measures to ease lockdown - which is not due before 21 June at the earliest. The review is specifically considering privacy and ethical issues, and whether employers can request COVID passports assuming such a system is implemented. The Prime Minister has already indicated that those who can't have a vaccine should not be discriminated against and it may be that any system will be focussed primarily on international travel rather than access to workplaces.
COVID-19 vaccination is encouraged but is not compulsory in the UK. Those already vaccinated receive a vaccination card, and the details go on their medical records. An obvious method for offering proof would be for people to use an app on their phone to prove they have been vaccinated or had a recent negative test. This would allow people at mass events or sports stadiums to demonstrate that they have been vaccinated; such a system is, at least, under consideration.
Some other countries are certain to require proof of vaccination to allow entry, so proof will be need to enable travel abroad to some places.
- Greece: have urged the European Commission to introduce a certificate which would allow those who have been vaccinated to move freely.
- Estonia: is developing an e-vaccination certificate, known as a "smart yellow card", with the UN's WHO health agency.
- Denmark: will have a digital vaccine passport.
- Spain: has a database of vaccine refusers.
- Saga holiday company: says passengers on its 2021 holidays or cruises must be fully vaccinated.
- Qantas airline: says travellers will eventually need to prove they have had a vaccination to board its flights.
Q: What are the considerations for employers when looking at lateral flow testing for employees?
There are many considerations for employers when considering lateral flow testing, including the UK government scheme, costs and reliability of that form of testing, consent, data processing and records, decisions around symptomatic and asymptomatic testing and overall COVID-19 secure procedures and risk management.
(Please note, this FAQ deals with Lateral flow devices (LFDs) but for further information on testing issues generally see the FAQ 'What should employers consider when deciding whether to offer in-house private coronavirus testing for employees?' (below). The FAQ 'What are the key legal aspects to consider if employers are deciding whether to offer employees in-house private coronavirus testing for employees?' also contains information on existing legal obligations surrounding testing, including health and safety, general employment law and data protection.)
LFDs are one of the tests being used to help detect the presence of the COVID-19 from a nose and throat swab sample. The test is administered by handheld devices and results can usually be delivered in under 30 minutes. A coloured strip on the LFD will appear to show a positive result. LFDs are used in people who don’t have symptoms but who may be infectious with high virus levels; this is important as many people who have coronavirus never show symptoms and may unknowingly pass the virus on. The LFD detects a COVID-19 antigen, and it appears that LFDs can detect the new variant of the virus.
Comparing the tests
Any positive LFD test needs to be confirmed by a PCR (polymerase chain reaction) test. PCR tests are used primarily in people who have symptoms and are the main type used on the NHS website. The PCR swab test is the most accurate means of testing. These tests identify the genetic material of the virus and the swab kits have to go to the lab, rather than be tested on site. The PCR tests are better at finding smaller amounts of the virus, especially early in infection. Employers can obtain PCR tests privately instead of using the NHS system, but this would be to test staff within five days of the onset of symptoms of COVID-19. Those employees would then immediately self-isolate at home for 10 days and would have to arrange a test via NHS Test and Trace anyway. NHS Test and Trace would then notify contacts.
There are also LAMP tests (loop mediated isothermal amplification) which provide results in about 90 minutes, but trained staff are required to operate the assay testing. Tests on saliva are also being trialled.
Whilst LFDs alone won’t stop the spread of the virus, the NHS have said that they can help detect large numbers of positive cases quickly and when used with other infection prevention control measures, LFDs can help control the virus spread.
LFDs for use by employers
LFDs may be useful in various different settings including schools, universities and adult social care. In addition, their use may be considered by employers as well as general mass population testing and confirming regions with high prevalence of COVID-19.
When secondary school pupils return to school in March 2021 schools will test all pupils in the first two weeks back. Pupils will then be asked to conduct tests at home twice weekly from the week commencing March 15. The government have also announced that whole families and households with primary school, secondary school and college age children, including childcare and support bubbles, will be able to test themselves twice every week from home as schools return from 8 March.
The UK government have emphasised that employers should regularly test their staff, and are attempting to raise awareness and encourage more businesses to test. As one in three people could have the virus without symptoms, focusing on testing is essential.
For employers, LFDs could be used to provide an effective permit so that employees may be tested each day before attending the workplace.
Employers who decide to test should have a testing policy and will need employees’ consent before undertaking tests. Confidentiality arrangements will be the same as for the other tests undertaken on employees. The results and processing of testing will need to be in accordance with the Data Protection Act 2018 and the GDPR.
Communication with NHS Test and Trace, and the local authority, will be essential in the event of positive cases found among those tested. For more information on policies, consent and other legal requirements see our Q&A on legal aspects of in-house private coronavirus testing (below).
Factors to consider
Cost: LFD tests on asymptomatic staff are relatively low cost tests individually. However, considerable resources would be needed for regular daily or weekly testing for a large workforce as well as the costs of organising and monitoring the reporting of testing undertaken. Employers will need to do a cost and benefit analysis. Symptomatic testing is essential but general LFD testing by employers will only really be useful if there is regular testing of all staff. The Government’s Scientific Advisory Group on Emergencies (SAGE) advice on mass testing is that this should be at least weekly.
Government workplace testing regime: In February 2021 the government announced more workplace Covid testing for employers in England. As the devolved nations can set their own coronavirus regulations Scotland, Wales and Northern Ireland offer separate advice on testing.
In England lateral flow testing will be offered to staff during lockdown who:
- work in sectors open during lockdown;
- cannot work from home;
- are not showing symptoms; and
- work for businesses with more than 50 employees.
There is an online portal to register for the workplace testing programme. The Business Secretary has said this workplace testing regime is an additional tool supplementing vaccines in reopening the economy which suggests the scheme may continue in some form after lockdown. Tests will be provided free to both public and private sector employers who qualify until at least 31 March, but this free support will then be reviewed and changes may be made after that date. Meanwhile, those who can work from home should continue to do so.
The sectors included in the testing include both public and private sector employers including the transport sector for example London underground, border force staff at Heathrow, supermarkets and others in the food industry and retail sectors. Other private sector organisations include manufacturing and energy, and public sector employers include the police, job centres, and the military.
Whilst the British Chambers of Commerce encourages eligible businesses take up the testing opportunity some unions have emphasised that rapid tests are not a magic bullet to achieve staff safety (see below).
Further information on the rapid workplace testing scheme is available from the government website.
Other points to consider
Time off for testing: As LFD tests become more available and the government testing scheme remains in place, issues can arise about whether time spent having LFD tests counts as working time. This is relevant both for the working time limits under the Working Time regulations and for National Living Wage or National Minimum Wage (NLW/NMW) purposes.
If employers are endorsing the government’s stance and encouraging LFD testing then it is logical that the half an hour or so spent taking the test is considered as working time. The preliminary indications from HMRC are that:
- Employers encouraging testing: the time should count as working time.
- Employers making testing mandatory: the time should count as working time.
- Employers with completely voluntary testing: the time would not count as working time.
Accuracy: LFD tests are not as accurate as the laboratory-based tests. Research by Public Health England and the University of Oxford, and trials in Liverpool, show only small numbers of people (about 0.34%) had a positive test but the person did not have COVID-19. So only a few were wrongly told that they had the virus after the LFD tests looked at. Despite the low numbers of false positives, the tests did show considerably more false negatives. In these tests 76.8% of people who did have the virus received a positive result. Therefore approximately 23% of people who actually did have COVID-19 would be told their test is negative and not identified as having the virus. The missed asymptomatic positive cases led to some unions expressing concerns that employers could not rely on LFD testing alone to ensure staff safety and that employers should understand the limitations of these tests.
Obviously if employers test large numbers of staff daily or weekly then statistically it is likely that there will be significant numbers of false negatives. The lower level of reliability is one of the reasons LFD testing is not used for those who are symptomatic, as the likelihood of a false negative is higher. The above research from Public Health England and Oxford University does find lateral flow tests are specific and sensitive enough for mass testing, including for asymptomatic people.
The accuracy issues do not mean employers should not undertake testing but any positive LFD test must be followed up by the employee self-isolating and arranging a PCR swab test through NHS Test and Trace. If that test is negative, then they will be able to stop self-isolating. Careful consideration should be given to ensure that any testing programme provides additional benefit over and above NHS Test and Trace. Whilst testing is one helpful tool, more needs to be done to make workplaces COVID-secure including distancing, sanitation, ventilation and high grade PPE etc.
Logistics: Administering tests is a logistical challenge for employers. Private testing companies can offer to run COVID-19 tests for employers. If so they must meet the minimum standards and be included in a register. Any private laboratories must be UKAS accredited, or working towards UKAS accreditation, and have quality management systems operating according to certain ISO standards similar to NHS laboratory standards.
False confidence: Risk assessment and infection control measures keep workplaces keep the workplace COVID-19 secure, and not testing. Employers must continue to ensure adherence to control measures by all employees, as these remain essential. Immediate testing of those with symptoms is essential, and NHS Test and Trace remains central to national response to COVID-19. However, regular asymptomatic testing by employers may not necessarily add value for the employer, and may incur substantial cost.
Asymptomatic testing is evolving and improving and can form part of a COVID-19 management system. It should be borne in mind that it could cause problems if it contributes to a feeling that other workplace measures are not needed but as part of an employer’s overall system testing has a role to play. It is essential that employers continue to follow the latest government guidance (particularly in relation to lockdown restrictions).
For further information see government guidance on COVID-19 tests and testing kits and testing guidance for employers. The government’s Scientific Advisory Group on Emergencies (SAGE) also has a statement on mass testing.
Q: What is long COVID, and is an employee with it suffering from a disability?
Long COVID is a shorthand term for the long-term adverse effects of Coronavirus. Employees can suffer from poor health for a significant period after an initial COVID-19 infection. Symptoms are extensive, ranging from exhaustion, breathing difficulties and breathlessness, continued fever, anxiety and stress, to muscle weakness, and the inability to walk. Others have heart or neurological problems. Lung abnormalities seem to last many months after infection and there seem to be post-viral fatigue symptoms similar to ME or chronic fatigue syndrome. There is increasing medical evidence that a small but significant minority of people who contract COVID-19 can still be seriously affected months after initially falling ill. As the virus is so new, medical knowledge about the effects of long COVID are still the subject of extensive research.
Long COVID can affect anyone of any age, although women under 50 are 50% more likely to suffer from long COVID than men in the same age group. Risk factors linked to long COVID include age, weight, asthma and ethnicity. So, employers must handle long COVID in an even-handed manner to avoid allegations of indirect race, sex or age discrimination.
In summary, sufferers of long COVID may have a disability although this is untested in the courts. Long COVID is likely to exacerbate a pre-existing condition (for example asthma) so some sufferers are likely to meet the Equality Act 2010 definition of disability, and other protections in the Equality Act may be triggered as well.
To be protected from disability discrimination under the Equality Act 2010 a person must have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
An employee with long COVID who has breathing difficulties and muscle weakness will have a physical impairment which adversely impacts their ability to carry out normal day-to-day activities. That effect will be substantial in some employees and not in others, depending on the severity of their symptoms.
The adverse effect of the impairment must be long-term which means:
- it has lasted at least 12 months;
- it is likely to last at least 12 months; or
- it is likely to last for the rest of the life of the person affected.
As the virus has only been present in the UK since January 2020 the long-term physical effects of COVID-19 are only just starting to be observed over a long enough period. Employers must look at the specific facts of each case but it is starting to look as if there will be long COVID cases that meet the definition for protection as a disability. Employers should assume that employees may be protected by the Equality Act disability definition. Even if long COVID is not proven to be sufficiently long term, at least some employees with it are likely to have conditions which are increased by or triggered by the virus.
Q: How do employers manage employees suffering from the effects of long COVID?
Employers can manage employees suffering from the effects of long COVID in a similar way to employees with other long-term conditions, although some extra considerations may be appropriate.
The usual advice for long term absences entails proactively managing absence and keeping an appropriate level of contact with the absent employee. Managers should follow any long term absence procedures and understand the symptoms and reasons for any absences with the support of any occupational health advisers where appropriate. Employees with long COVID should be entitled to any company or statutory sick pay, in a similar manner to any other employees on long-term sickness absence. However, long COVID symptoms vary so discussions with each employee will be critical to identify how it affects them, to assess the support needed by each individual employee. In addition:
- Up until 30 April employees who are off sick with long COVID could be furloughed, although the furlough scheme is not intended to be used for short- or longer-term sickness absence. The scheme is expected to be extended into May. Employers can choose when to furlough employees with their agreement. For more information see our FAQs on furlough.
- After normal sick leave provisions employers can consider allowing a phased return to work.
- Other ways to manage employee’s return include temporary or permanent adjustments to working hours and continued homeworking.
- Consider other reasonable adjustments to alleviate the employee’s problems and providing access to occupational health and employee assistance programmes.
- There may be health insurance provision and employers will need to check if employees with long COVID are covered (see below). Some insurers already offer long COVID packages of rehabilitation time and therapy where staff can be referred by employers after an absence of four to six weeks.
Some employers have PHI or income protection insurance covering staff on long term sick leave. Normally employees must meet eligibility criteria which can link to being disabled under the Equality Act 2010. Insurance policies may pay out and give full or partial salary when sick pay ends. As long COVID is so new there are no cases confirming it meets the disability definition. However, it is thought that at least some long COVID sufferers will suffer from a disability and be entitled under PHI policies. Long COVID may exhibit related conditions like post-viral fatigue which are disabilities anyway.
Employees with long COVID may have a disability, so employers should consider what adjustments to duties, working from home or working hours could help them return to working or the workplace (once lockdown restrictions end). Flexible working may be needed as people may be able to work on some days better than others, as with those diagnosed with ME. Employers should avoid treating employees less favourably because of their high levels of sickness absence as this could be direct disability discrimination or discrimination arising from a disability.
For further information see our Q: What is long COVID, and is an employee with it suffering from a disability? (above).
Q: What should employers consider when deciding whether to offer in-house private coronavirus testing for employees?
Employers may consider internal coronavirus testing programmes to manage the workforce risk, put employees’ minds at rest, or to ensure staff return to work as soon as possible. However, there are many considerations for employers when considering testing for employees including the costs and type of testing, the UK government scheme, processing the data, decisions concerning symptomatic and asymptomatic testing, overall COVID-19 secure procedures and risk management. Handled well, testing can give employees and customers confidence and help protect business.
Testing will not enable employers to avoid following the overall national and regional measures though, so the working from home guidance and COVID-19 protective measures in the workplace must still be followed. Even if testing is adopted, employers must follow all such steps including the Health and Safety Executive guidance on staff safety and conducting risk assessments.
It is a voluntary decision for employers to offer testing for their staff and the following aspects must be consider when adopting a testing programme. Further legal issues appear in our FAQ on the legal aspects of testing (below) and specific issues relating to Lateral flow testing (above).
Employers with 50 employees or less will have to make their own decisions and arrangements concerning testing, whereas those with more than 50 employees may qualify for lateral flow testing under the government scheme. See our FAQ on later flow testing (above) for further information.
Communication and employee engagement is an important part of the private testing process. Employee agreement is usually required and is dealt with in the FAQ on legal aspects (below). General consultation with staff before implementing a testing policy is also advisable.
Matters to address during consultation include:
- why steps over and above Test and Trace are thought necessary
- whether the testing is voluntary or mandatory
- where staff stand if they refuse testing.
The testing process should be explained including delivery of the result and steps after receiving a test result. Employers are legally bound to share all results from both virus and antibody tests with the relevant member of staff. Employees can agree to have the employer told of their result first. Employees should be clear on where staff can seek advice on their results and their rights throughout the process.
People professionals may need to sign confidentiality clauses over and above the employer's standard procedure and be given additional training on the handling of sensitive health data if they are expected to communicate testing results. Ideally a healthcare professional should be on hand to communicate and discuss the results with employees.
Testing programmes and policies
Employers should consider a written coronavirus policy governing testing. This should interact with other policies covering discipline and grievance, absence from work, diversity and discrimination. Policies will cover:
- Who will be tested? Does this include symptomatic or asymptomatic employees, agency staff, contractors etc? What about those who refuse?
- How often will testing occur? A virus test assesses if some-one has COVID-19 during a snapshot of a moment in time. Employers who decide to offer private test will need to decide on the frequency of repeat tests. There is not a clinically defined number of times for testing or a given time frame and the affordability of implementing a testing programme is a relevant factor.
- Acting on test results: If employees test positive, they should immediately self-isolate for 10 days from the point of developing symptoms, if they have symptoms, or 10. days from the test date if they do not. The employee also needs to share information with NHS Test and Trace service about their recent contacts to enable Test and Trace to alert those contacts of their need to self-isolate. If employees test negative they do not need to self-isolate unless: a member of their household has symptoms or has tested positive, someone in their support bubble has symptoms or has tested positive, Test and Trace has told them to self-isolate or they feel unwell.
Employers should remind employees who develop symptoms after receiving negative results to self-isolate and be re-tested.
Test results from antibody testing indicate if the person has previously had the virus but it does not indicate long-lasting immunity. Those who test positive or negative to antibodies could still get the virus again and should continue to work from home where possible or follow safe workplace guidelines including social distancing.
Choice and quality of tests
Before deciding to privately test staff employers should decide upon the type of testing being used, the reliability and longevity of the test and what the test result means. Employers should keep up to date with the forms pf testing available as the science is evolving rapidly. Some clinics and health centres offer private test which can be very expensive, especially as a test only helps for a limited period. To be effective testing may need to be repeated. There are two main types of test.
Testing for current infection: Nose or throat swabs check if the employee has coronavirus now. New tests that deliver results more quickly are being introduced in hospitals and care homes using portable machines. Tests on saliva are also being developed. The main forms of test are:
- Lateral flow devices (LFDs) are one of the tests being used to help detect the presence of the COVID-19 from a nose and throat swab sample. The test is administered by handheld devices and results can usually be delivered in under 30 minutes. The swab is added to a liquid, which is then applied to the end of a small absorbent pad. The pad has strips coated with antibodies that bind to proteins on the virus show up as a coloured line on the test like a pregnancy test. The coloured strip on the LFD will appear to show a positive result. LFDs are used in people who don’t have symptoms but who may be infectious with high virus levels. The LFD detects a COVID-19 antigen, and it appears that LFDs can detect the new variant of the virus. There will be some false results with LFD tests and any positive LFD test needs to be confirmed by a PCR (polymerase chain reaction) test.
- PCR tests are used primarily in people who have symptoms and are the main type used on the NHS website. The PCR swab test is the most accurate means of testing but takes some time to perform. These tests identify the genetic material of the virus and the swab kits have to go to the lab, rather than be tested on site. A specific reagent is added to the sample, which identifies any genetic material of the virus and replicates it to the point at which it can be detected. The PCR tests are better at finding smaller amounts of the virus, especially early in infection.
- LAMP tests (loop mediated isothermal amplification) which provide results in about 90 minutes, but trained staff are required to operate the assay testing.
Testing for antibodies: These tests involve blood samples and check if the person has had coronavirus. This second type of test indicates past, rather than current, infection. These are mainly being used by scientists to estimate what percentage of the population has had COVID-19, rather than to diagnose individuals. These antibody tests do not always work as some people who have had coronavirus do not have antibodies.
The Medicines and Healthcare products Regulatory Agency (MHRA) has issued guidance explaining how both virus and antibody tests work and regulates the law on medical devices in the UK including safety and quality of tests.
Employers are obliged to ensure that the test kit they use has a ''CE mark'' to designate a certain standard, as without it the tests may not be permissible in the EU or UK. The MHRA has said there is little scientific evidence to support temperature screening as a reliable method for detecting of COVID-19.
Collecting and handling samples
Test and sampling kits must have appropriate instructions and packaging that clearly advises on the correct storing, handling and transporting of the testing device.
There are two main methods for sample collection:
- Self-administered tests: The sample is collected by the person having the test or by someone else (assisted) outside a laboratory for example a police station, care home or drive-through centre. For virus tests a swab sample may be used, and for antibody tests a finger prick blood sample. Samples may be sent to a lab for analysis.
- Point of care tests: These samples are collected by a healthcare professional in a medical or laboratory setting instead of by the person being tested.
Results should be interpreted by healthcare professionals and if employees have assistance in collecting their sample this should be by a healthcare professional to ensure the sample is taken properly.
Self test kits
Some chemists are providing rapid antigen tests in some locations. For example using LFD tests with a reader to increase consistency in results. There are also finger prick home testing kits for antibodies, although antibody testing is of more use in research settings. Presence of antibodies indicates past infection, but cannot guarantee immunity.
Any self-test kits where the results are interpreted by employers or employees by themselves rather than sending the sample to a laboratory are less unlikely to have received a CE mark and may not be reliable. Any laboratory doing COVID-19 testing should be UKAS accredited and must report any positive COVID-19 cases as a notifiable disease. If a member of staff has a positive virus test result, employers should ensure that the laboratory processing the tests notifies Public Health England or the equivalent authorities in Scotland, Wales or NI. Employers should also report any issues that may lead to false virus or antibody test results following testing.
There is NHS guidance on How to use self-test kits safely and Warning about self-test health kits. MHRA has published guidance on reporting to the yellow card scheme for health care professionals.
Given the cost implications of private testing employers may consider if relying on NHS testing or the government scheme, if applicable, is adequate instead of private testing. If staff have symptoms they should be referred to the NHS Test and Trace service anyway. Employers should not advise individuals without symptoms to get a test from Test and Trace, and the private alternative may then be appropriate.
Employees can only book NHS testing via its website if they or a household member are showing coronavirus symptoms, and certain criteria are met. Employers can refer staff for virus testing through the Employer Referral Portal. Anyone with coronavirus symptoms can get a test, and some other people in England can be asked to have a test:
- before going into hospital, for example for surgery, and
- by the local council.
Others who work in certain high risk settings including social care and NHS workers (such as care homes) may be able to be tested, in line with NHS England guidance.
Those with symptoms must be tested as soon as possible and can apply online or call 119 for testing if there are problems using the internet. On days 1 to 4 of symptoms, individuals can book a visit to a test site or order a home testing kit. On day 5 individuals must go to a test site as it is then too late to order a home testing kit.
People who cannot get a test in the first 5 days of having symptoms must stay at home and self-isolate as must anyone in the same support bubble. NHS Test and Trace will contact employers if two or more new COVID-19 cases are linked to a workplace setting. See the government’s guidance Coronavirus (COVID-19): getting tested for further details of NHS testing availability.
Q: What are the key legal aspects to consider if employers are deciding whether to offer employees in-house private coronavirus testing for employees?
The key legal aspects to consider if employers are deciding whether to offer employees in-house private coronavirus testing relate to existing legal obligations, including health and safety, general employment law and data protection. For other practical and policy aspects see our FAQ on what aspects employers need to consider if they are deciding whether to offer in-house private coronavirus testing above.
The starting point is that employers usually need employees’ agreement to being tested. The easiest solution is if employees just agree to take the test. A minority of staff may refuse. Reasons for refusal may range from a fear of medical procedures to those who downplay the seriousness of the virus threat and believe testing to be unnecessary.
Agreement is critical as any attempt to test employees without their agreement could be an assault. In a minority of cases the employment contract may already contain the employee’s agreement if there are provisions requiring employees to take medical tests (as with drug testing).
If there is no agreement and no contractual clause employers must use the implied duty of trust and confidence and their obligations to ensure staff health and safety under the Health and Safety at Work Act 1974. Because of the duty to ensure the health, safety and welfare of staff it could be a reasonable management instruction to adopt private testing. Employers can argue that the implied duty of mutual trust and confidence to other employees means they can request other employees to take a test.
Employees have an implied duty of trust and confidence too, so refusal to comply could in certain situations be a breach of this duty as well as a failure to comply with Health and Safety obligations. Therefore, employers may be able to start a disciplinary process for employees who refuse, depending on the facts including the nature of the workplace, local outbreaks, whether there are particularly vulnerable colleagues and the extent of risk.
Data protection and confidentiality
Test data confirming negative or positive virus testing is special category (or sensitive) data because it is medical information. If employers do carry out testing they need to store and process the data in accordance with the Data Protection Act 2018 and the GDPR.
Employers should confirm to employees how personal data will be processed including:
- processing all data fairly and transparently
- ensuring staff are aware of the personal data required and what it’s used for
- explaining who data is shared with
- making employees aware of how long data will be kept.
Data protection allows personal data to be used to help implement health and safety measures in the workplace or other action to protect the public. Processing of some health data can be justified to comply with employment and social protection law obligations and for reasons of public interest in the area of public health. Nevertheless, there are important data protection considerations to take into account in processing. Further detailed information is set out in the guidance for employers by the Information Commissioner's Office including FAQs on data collection relating to COVID-19.
As well as data protection systems employers need to consider a communication plan if they adopt private testing. Employers should keep staff informed about potential or confirmed COVID-19 cases amongst their colleagues but should avoid naming individuals. Employers should not provide more information than is necessary. For example, an asthmatic condition of an employee that increases their vulnerability should remain a private matter.
Employers must ensure that positive test results do not lead to unfair or harmful treatment of employees. If an employee tests positive for antibodies employers cannot assume that they are immune, and allocate them more high risk people facing roles just because they have antibodies.
Other obligations include:
- The Control of Substances Hazardous to Health Regulations 2002: There are provisions relating to work with biological agents so employers may need to check compliance with these when overseeing handling, transportation and laboratory analysis of test samples.
- Health Protection (Notification) Regulations 2010: Medical practitioners have a statutory duty to report positive results of certain illnesses including COVID-19 virus tests to Public Health England.
- Public Health (Control of Disease) Act 1984: This Act also relates to medical practitioners' statutory duty to report positive results of certain illnesses including COVID-19.
There is World Health Organization guidance on regulations for the transport of infectious substances including samples.
Q: How should we support pregnant employees?
Risks to pregnant women
Pregnant women have extra statutory protection to ensure they are protected from risks at work. Employers have a duty to protect all employees and an even higher duty towards any staff who are pregnant. Employers of pregnant women should be extra cautious and try to avoid pregnant employees having non-essential contact with others. Whilst the national lockdown remains in place (or in the event of a local outbreak or high Tier restriction) employers must continue to offer working from home. Staff, including pregnant women, must work from home and can only leave home for work where it is unreasonable to do their job from home.
In some roles it is not possible to offer home working, including but not limited to people who work within critical national infrastructure, construction or manufacturing that require in-person attendance. Other sectors include public sector employees working in essential services, including childcare or education, and those working in other people’s homes - for example, for nannies, cleaners or tradespeople. If necessary pregnant employees in these sectors can be offered suitable alternative employment on a temporary basis (that could be done from home) or suspended from work on medical grounds (on full pay). Other potential adjustments include temporarily altering the employee's working conditions or hours of work. If the pregnant employee remains suspended until the fourth week before the expected week of childbirth or are absent from work for a pregnancy-related reason, this triggers the commencement of her maternity leave.
Easing of lockdown
When lockdowns ease the Government may give employers more discretion to decide how their staff can work safely, which can mean making workplaces safe or that employees should work from home if they can. Pregnant employees should still socially distance and take particular care to minimise contact with others outside their household. So home working for pregnant women who wish to do this is one way of working safely which has worked for many employers and employees.
Employers have ongoing duties under health and safety legislation and should undertake risk assessments, including the extent to which it is possible to follow social distancing, minimising the use of public transport and staying 2m away from others wherever possible (and 1m if 2m is not possible).
As restrictions lift, pregnant women and anyone with underlying health conditions must still minimise contact with others, for example, by providing pregnant women with their own office or providing personal protective equipment. If employers cannot offer safe work, then working from home or agreed suitable alternative work may be the best options.
In December 2020 the UK started to distribute the Pfizer/BioNTech coronavirus vaccine, followed by the Oxford AstraZeneca vaccine, with the first priority given to the most vulnerable.
Eventually employers will have increasing numbers of staff being vaccinated. For pregnant staff there are two main possibilities:
- An employee who has previously been vaccinated then becomes pregnant.
- An employee who has not yet been vaccinated is pregnant.
Women should discuss the benefits and risks of having the vaccine with their healthcare professional and reach a joint decision based on individual circumstances. For example, pregnant women who are frontline health or social care workers, including carers in a residential home, should discuss the option of vaccination. Their risk of exposure to COVID-19 may be higher. This advice is in line with pregnancy and breastfeeding advice for the Oxford University/AstraZeneca vaccine.
- Employers must take all precautions to protect pregnant staff from COVID-19 in particular if they have underlying health conditions.
- Extra care must be taken to protect pregnant women who are older or previously overweight or with pre-existing conditions, such as diabetes, chronic high blood pressure as they are more likely to suffer severe health complications due to COVID-19.
- Pregnant women who have not yet been vaccinated (after discussions with a health care professional) can be vaccinated after the pregnancy is over, although there should be some discussion whilst breastfeeding too (see below).
Employees who are breastfeeding or trying to conceive
It appears that women who are breastfeeding can also be given the vaccine. Precautionary government advice until additional evidence is available is to reach a joint decision concerning the vaccine with a health care professional, so this would apply immediately before pregnancy and perhaps during breastfeeding too.
Employers should support women who think they may be pregnant or who are planning a pregnancy.
Those employees who are not pregnant can start the two-dose vaccination course once they are offered it, but should avoid getting pregnant until at least two months after the second dose. If an employee becomes pregnant after having had the first dose they should discuss the second dose with their health care professional.
Employers should keep checking current government guidance.
Health and safetyIf a pregnant employee’s colleague or someone else in the workplace has coronavirus symptoms or has been in contact with others with COVID-19 that person may consider themselves in serious and imminent risk of danger to health and safety. In such situations there is special protection against dismissal and detrimental treatment if the pregnant women wants to leave work to protect themself.
This protection is under Section 44 of the Employment Rights Act 1996 and requires a reasonable belief that there was a serious and imminent risk based on the situations at the time and the steps taken and advice given about the risks.
Clinically vulnerable and extremely vulnerable
Most pregnant women fall into the ‘clinically vulnerable people’ category who are advised to take particular care, but not to 'shield' - see our shielding guidance.
Only some pregnant employees are classed as clinically extremely vulnerable to coronavirus, including women with significant heart disease who are pregnant. These women would fall in the shielding category. Although the shielding programme is likely to be paused once most CEV people have been fully vaccinated, pregnant women are less likely to be vaccinated and are therefore in need of heightened precautions. During the operation of the furlough scheme, these employees could still be furloughed if they cannot work from home.
Being on furlough does not impact eligibility for or the amount of statutory maternity, adoption, paternity, or shared parental pay. Pregnant women who are not furloughed and are shielding can get Statutory Sick Pay (SSP).
Employees who are pregnant during the crisis can start maternity leave as usual. If the workers planning to take some form of statutory parental leave were furloughed their statutory payments are based on their usual earnings not the furlough pay.
Leave and pay
For staff already on maternity, paternity or adoption leave or shared parental pay normal rules for statutory pay apply. For example, eligible mothers will be entitled to claim up to 39 weeks of statutory maternity pay or maternity allowance. The rate is 90% of average weekly earnings for the first six weeks, followed by 33 weeks of pay at 90% of average weekly earnings or the statutory flat rate (whichever is lower). The statutory flat rate rose to £151.20 a week from April this year.
Enhanced contractual maternity, paternity, adoption and shared parental pay are included within the wage costs that employers can potentially claim back through the Coronavirus Job Retention Scheme until the scheme ends. Any further claims during this final phase of the flexible furlough scheme depend upon when the employee was furloughed, when their leave occurs and whether they are on statutory or contractual maternity etc schemes. See our FAQs on the extended furlough scheme for more detail on aspects of maternity leave and furlough.
Q: What should employers think about if they are offering employees a flu jab?
During the flu season, employers and employees who have not considered flu vaccination programmes previously may considering them, partly due to increased anxiety about avoiding any form of infection.
From an employer’s perspective flu-related absences affect staffing and productivity with many days potentially missed over the course of the season.
Having a policy around healthcare including availability of flu vaccinations is always helpful. Employers have no obligation to offer flu vaccination, but if it is on offer employers should think about the following:
- Communication with employees at the start of flu season about entitlement to flu jabs is important, including details of which staff are covered.
- Employers cannot insist on a flu vaccination without an employee’s consent.
- Forcing a reluctant employee to have a vaccination would be a criminal assault.
- Employer funded flu jabs may be given in the workplace, employees may be given vouchers to have the jabs elsewhere or staff can make their own arrangements for vaccination and the employer reimburses them.
- Policies should also include information on hygiene measures to prevent the spread of flu and employers should send reminders of those measures at the start of each season.
- The current emphasis on home working and practical aspects such as automatic doors and hand sanitisers may also help prevent the spread of flu.
NHS flu jabs
Some people are entitled to free flu vaccines from the NHS including:
- pregnant women
- individuals aged 65 and over
- people affected by a chronic health condition including, diabetes, or a heart condition
- people in close contact with immunocompromised individuals.
Healthcare workers especially have a much higher incidence of flu absences than the general population. Although most UK employers can choose whether to offer flu jabs employers should offer them at the start of flu season to all health and social care staff whose roles involve direct care work to comply with duties under the Health and Safety at Work Act (1974).
Other people may opt to pay for a jab. Employers don’t have to give time off work for a flu jab appointment, even for free NHS jabs. It is therefore at the employer’s discretion whether work time missed in relation to any flu-jab appointment is paid or unpaid.
Q: I work in retail; do we have to provide face coverings for staff now that they’re required?
Face coverings are now required by regulations which apply to employees in certain sectors including hospitality, retail and tourism. Pupils in secondary schools in England are also required to wear masks in classrooms, at least until the Easter break if social distancing is not possible. Employers can ask employees to supply their own face coverings. In light of their health and safety duties employers in these sectors should supply these face coverings for staff to minimise the risk of fines and claims if the employees do not wear them. Cutting transmission remains important despite the vaccination programme as many people will not receive their second dose until later in 2021 and some may not have been vaccinated at all, for example some pregnant women or those with certain conditions.
The plan to progressively ease lockdown could potentially see most restrictions including wearing face coverings or masks by lifted by 21 June. The government is undertaking a review of social distancing, working from home masks and other measures and will report on these aspects before 21 June. Health Secretary Matt Hancock has already indicated that he hopes masks would become the norm on public transport as a matter of personal responsibility.
Employers need to consider the standard and type of mask and how many will be issued to staff per day. Where face masks are imposed as a matter of law or as a result of the employer’s risk assessment employers should ensure that face coverings are worn appropriately. Disputes may arise between employees with differences of opinion about correct wearing of face coverings and employers will need a mechanism for this to be raised and investigated with follow up disciplinary action where necessary.
What is classed as a face covering?
Anything that safely covers the nose and mouth will suffice including reusable or single-use face masks, scarves etc.
Sectors where face coverings are required
From 24 September face coverings had to be worn by retail, leisure and hospitality staff working in public areas where they’re likely to come into contact with a member of the public. This includes:
- estate agents
- post offices
- public areas of hotels and hostels.
Guidance stating that face coverings and visors should be worn in close contact services such as hairdressing became law from 24 September. Customers in private hire vehicles and taxis must wear face coverings from 23 September onwards. It is assumed these rules will still apply as these sectors reopen in the progressive easing of lockdown between March and June 2021.
Where there is a screen or other physical barrier between staff and members of the public then staff behind the barrier need not wear a face covering but staff working on public transport and taxi drivers will continue to be advised to wear face coverings. Transport workers do not have to wear face coverings as a matter of law but should do so if they are unable to maintain social distancing in passenger facing roles.
A minority of employees may have legitimate reasons for not wearing face coverings, such as because of a physical or mental illness. For example, it could be indirect disability discrimination to insist an employee with claustrophobia or asthma wears a face covering if they are unable to do so because it would prevent them breathing properly. Employers must make reasonable adjustments for disabled workers which may entail not wearing a face covering.
The risk assessment process should pick up any individual issues so, for example, as well as the general risk assessment process an individual risk assessment may be needed for an employee with COPD and breathing issues. There may be reasonable adjustments needed to provide alternative protections instead of a face covering such as a separate working area or work which could be undertaken remotely.
Face coverings are only one part of coronavirus preventative measures including social distancing, hand hygiene, surface cleaning, PPE and screens to separate people from each other. The government has provided detailed guidance for specific workplace settings.
Employees who are exempt from wearing a face covering may be abused by other employees. The employer will need to protect those employees from confrontation or harassment, wearing exemption badges is one option.
Employers must take reasonable steps to comply with the law. The police and Transport for London can issue fines of £200 (reduced to £100 if paid within 14 days) for the first offence unless there is an exemption. A second fine doubles to £400 and a third fine to £800, up to a maximum value of £6,400.
The £200 applies in England and Northern Ireland whereas in Scotland and Wales, a £60 fine can be imposed. Repeat offenders face bigger fines.
Use by the public
Face coverings are also mandatory for passengers on public transport in England, Scotland, Wales and Northern Ireland. Visitors to banks, shops, supermarkets and shopping centres in England, Scotland and Northern Ireland also have to wear face coverings. Face coverings do not have to be worn by the public where it would be ''impractical'' to do so (e.g. customers in restaurants must wear face coverings, except when seated at a table to eat or drink.)
Each nation has slightly different rules in schools:
- England: face coverings recommended in early years and primary schools, for staff and adult visitors where social distancing between adults is not possible. In secondary schools, face coverings must be worn in communal areas and classrooms where social distancing of 2m is not possible.
- Wales: face coverings are recommended in high schools when social distancing is unlikely to be observed.
- Scotland: all school staff must wear masks where social distancing is not possible. All secondary school pupils should wear face coverings in corridors and communal areas, and senior pupils (years s4-s6) and their teachers must wear them in class.
- Northern Ireland: face coverings must be worn in the corridors of secondary schools and on public and school transport
Q: How does private coronavirus testing for employees affect sick pay?
An individual who has privately tested positive but has not been in contact with NHS Test and Trace service may not qualify for SSP depending on any number of factors, including whether they are symptomatic or asymptomatic.
If an individual is contacted by NHS Test and Trace they will be eligible for SSP (if they meet the other eligibility criteria) from the day they are told to self-isolate.
Q: Do employers have to enforce face covering rules for visitors?
Employers who operate premises where face coverings are required, for example shops, supermarkets and transport, should take reasonable steps to promote compliance but do not have to actively enforce face covering rules.
Employers can refuse entry to anyone not wearing a face covering but do not have to do this. Any staff dealing with enforcement should be trained in the extensive list of exemptions (see the Q&A on face covering rules and exemptions.) The guidance on face coverings has changed rapidly. Initial government advice was that the evidence was weak to support their use; but this was followed by mandatory introduction on public transport, and then an announcement that they would be compulsory in shops and supermarkets from 24 July.
Employers must consider use of face coverings by staff as part of their COVID-19 risk assessments. The COVID-19 secure workplace guidelines and the specific sectoral guidance require social distancing until at least until June, including in most workplaces. If employers cannot reduce the distance and contact between employees sufficiently, they may decide to adopt face coverings but employers must assess the rules applicable for their sector, and benefits and practicalities of requiring face coverings in their own working environment. For example, in workplaces with high telephone use, face coverings may be impractical. As part of the risk assessment employers should consider alternative options to protect employees, such as barriers between workers or between workers and customers.
Risk assessments should cover also safeguarding staff from abusive or violent customers if disputes arise over wearing face coverings.
The government is not yet making face coverings compulsory in all offices although this may be reviewed; it is recommended that employers consider their use where appropriate. At the very least employers should consider if their duty to keep staff safe would be enhanced by staff wearing masks and by proactive enforcement measures. Employers should not try and stop employees using face coverings if they choose to wear them unless the employer has a very good reason. Whilst face coverings may be beneficial, wearing one is not a replacement for other ways of managing risk of COVID-19 infection in workplaces. For recommendations in specific settings the government has issued workplace settings guidance.
Staff in indoor settings
The government recommends use of face coverings in secondary schools in all indoor environments including classrooms for a limited period. This does not include where wearing a face covering would impact on the ability to take part in exercise or strenuous activity, for example in PE lessons. In primary schools, face coverings should be worn by staff and adult visitors where social distancing is not possible, for example in corridors and communal areas. Children in primary school do not need to wear a face covering.
Face coverings must be worn by staff in certain sectors including retail, leisure and hospitality staff working in any indoor area that is open to the public including shops, supermarkets, bars, pubs, restaurants, cafes, banks and public areas of hotels and hostels.
If employers have secured workplaces by creating a physical barrier between staff and the public then staff behind the barrier will not be required to wear a face covering.
Making face coverings compulsory
If employers can insist on face coverings at all for staff who refuse to wear them, depends upon whether the instruction from an employer is seen as a reasonable instruction which will depend upon the nature of the workplace and the employee's reasons for refusing.
Face coverings also need to be changed and washed regularly so providing several face coverings for each employee per day also has costs implications for employers.
Some unions including Unite, the GMB have said that employers should pay for surgical-grade face masks for all workers who need to wear them. Unless the government makes face coverings compulsory in workplaces, whether to fund face coverings or ask workers to supply their own, or to partially contribute to the cost, is currently a choice for employers. Employers must make the decision following their risk assessment taking into account their duties to protect employees’ health and safety.
If face coverings are supplied, they should be of a relevant standard. The government’s current advice is that face coverings could be used as a precautionary measure in some settings but does not specify surgical grade masks. The safest course is for them to be World Health Organisation compliant. The WHO advises at least three-layers and a waterproof outer layer to have any serious effect against the transmission of coronavirus. Cloth masks may be more cost effective but must be the relevant thickness and should not be made of material that sheds fibres that could be inhaled. They must also be washed after each use.
If employees are required to wear face coverings, the employer should provide locations for their safe removal and suitable hand sanitisation. If employers share buildings, they will need to be consistent where entrances, exits lifts and corridors are shared. This would apply to any face coverings adopted for staff too.
Enforcement measures for customers
The responsibility for wearing a face covering rests with the person who should be wearing the covering. The enforcement measures are against the individual, not the employer. People who do not wear a face covering are liable for fines of up to £100 unless they are exempt. The fine is £50 if paid within 14 days.
If a non-exempt individual refuses to wear a face covering, the business operating that premises can refuse entry and call the police but does not have to do this. Similarly transport operators can deny access if a passenger is not wearing a face covering, or direct them to wear one or leave.
It is the police who have the enforcement powers and can issue the fine. Transport for London officers also have enforcement powers including issuing fines. In theory police can forcibly remove shop customers or prevent them from entering if they are not wearing face coverings. Police officers will not be patrolling premises and realistically are only likely to have the resources to intervene if people not wearing a face covering refuse to leave or become aggressive.
Employers therefore do not legally have to enforce the rules and can choose the level of their response, this may in part be dictated by the overall needs or concerns of members of the public visiting the premises. This can range from putting up notices, reminding visitors verbally in an informal conversation, denying entry completely or ignoring those who do not comply.
Q: Do we have a legal right to take employees' temperatures at work?
The legal issues involved in testing temperatures at work are complex and involve data protection laws (see below). With the increased availability of testing this may be a more effective tool for employers to adopt as part of their COVID-19 preventative measures, as someone who is infected may have no raised temperature or show no symptoms at all. However, any method of managing risk of COVID-19 infection in workplaces is worthy of consideration.
Staff and residents in care homes for the over 65s and those in certain sectors now receive regular coronavirus test as part of the new social care testing strategy. The Government's current advice encompasses the five steps for working safely, along with sector-specific guidance. The official advice is still that people should continue to stay at home as much as possible. People who can work from home should continue to do so. People who can’t work from home (for instance, those working in construction or manufacturing), are being 'actively encouraged to go to work' but to avoid travelling there by public transport if at all possible. The detailed guidance does not address general workplace temperature testing, so the decision is left to employers in many cases. Certain workers are eligible for NHS drive-through testing.
Eligibility for NHS testing
Regular rapid-result coronavirus testing is available to people who cannot work from home during lockdown for employers with more than 50 employees. The following people should also be tested even if they do not have symptoms:
- social care workers and residents in care homes (with or without symptoms)
- NHS workers and patients without symptoms, in line with NHS England guidance.
The following people should be tested, if they have symptoms:
- all essential workers including NHS and social care workers;
- anyone over 65;
- anyone whose work cannot be done from home (for example, construction workers, shop workers, emergency plumbers and delivery drivers);
- anyone who has symptoms of COVID-19 and lives with those listed above.
So employees who have symptoms, whose work cannot be done from home should be tested by making an application through an online portal and going to a drive-through venue to obtain testing.
The government has detailed guidance on getting tested. Although this extends the amount of drive-through testing employers still need to decide whether to adopt general temperature testing in the workplace, and may consider this as part of their COVID-19 risk assessments.
The physical, emotional and mental wellbeing of the workforce remains the key principle of managing any return to the workplace. Employers must continue to communicate openly with employees and workers, to understand their concerns and perspectives. If it is not essential for work to happen in the workplace, then the default should be to work from home. Employers should keep checking the government website for the latest information.
Deciding to test
In the absence of a Government requirement for temperature testing requirement, employers can decide not to undertake testing. Displaying a high temperature is one of the main symptoms (along with a new continuous cough and loss of smell or taste) of a COVID-19 infection but equally someone who is infected may show no symptoms at all. On the other hand, employers may decide to follow the lead of other countries and try temperature testing to discharge their health and safety duties. Employers may decide employees need reassurance that the workplace is safe, and staff representatives may suggest temperature testing during Coronavirus risk assessments.
Voluntary temperature testing
For businesses that remain open or reopen and decide to test, the legal position concerning taking employees’ temperatures for Coronavirus is similar to the medical testing of employees for other reasons. The easiest way for employers to conduct such medical tests would be on a voluntary basis. The contractual terms agreed in the employment contract or accompanying policies may also be of assistance to employers who want to check employees' temperatures at work.
Employers who wish to monitor employees’ temperatures should openly explain the current Coronavirus advice, their concerns and risk management strategy. Employees may then choose to have their temperatures taken based on this advice.
If employees do not agree and there is no contractual provision or agreed policy covering the situation then taking an employee’s temperature is unlawful. Certainly, an employer should not try to force employees into having their temperature taken, or issue threats of suspensions, disciplinary or dismissal processes.
Express terms: Some employment contracts have clauses in them which impose an obligation on employees to undergo drugs testing, providing a sample, of urine, hair, saliva or blood etc. Depending on the wording of the clause, taking a temperature might be covered by these clauses.
If an employee refuses to comply with a pre-existing clause which encompasses taking temperatures, then the employee may be in breach of contract by refusing to co-operate. If there is a clear clause which covers taking temperatures then refusal might provide grounds for a disciplinary or dismissal procedure although this is generally inadvisable.
Implied terms: Many contracts of employment do not contain a contractual term entitling the employer to require employees to be tested. This means employers can request voluntary testing but can't compel this. A possible course of action for employers who wish to insist on testing (without an express clause) would be reliance on a possible implied contractual term that employees should comply with a reasonable request from their employer. On the one hand, employers do have a duty to protect the safety of their workplace under the Health and Safety at Work Act which includes ensuring that employees are not infecting others with the Coronavirus. On the other hand, from a practical point of view, an employee may be infected with Coronavirus without yet having a raised temperature. Some businesses, such as public transport and healthcare, pose different safety risks where testing may be more justified.
Whether insisting on taking temperatures is reasonable (without an express clause) depends on a number of factors including the employee’s role, official health advice on precautionary measures at the time, the employee’s symptoms and the alternative causes of action, such as self-isolation, that are available. Employers could breach their own implied duty of mutual trust and confidence to other employees if they do not request an employee to take a test if necessary. In the context of the unprecedented circumstances, the implied duties of trust and confidence and employers’ obligations to ensure the health and safety of employees it is arguably reasonable to request testing. However, it is preferable for employers to suggest working from home or self-isolation rather than trying to force a reluctant employee into temperature or other testing. If employees agree to have their temperature checked and have a high temperature, an employer may reasonably require them to go home as the temperature suggests an illness even if not Coronavirus. In the case of employees who are off sick they will be required to test by the test and trace system anyway.
Although the Government guidance does not address widespread temperature testing, the Information Commissioner's Office has issued guidance which addresses the issue. The critical issue remains whether the tests and keeping any resulting records are necessary and proportionate. Employers can ask employees to notify any COVID-19 diagnosis as this processing of health data is justified under the GDPR as being necessary to comply with employment and social protection law or for reasons of public interest in health.
If employers process information that relates to an employee, they need to comply with the GDPR and the Data Protection Act 2018 (similarly to drug testing). Any data that an employer has about an employee’s temperature, symptoms, where the employee has been and whether he or she has tested positive for Coronavirus is health data, and is referred to as ‘special category data’ under data protection law. For example, if an employee is tested through the test and trace system and forwards emails confirming their status may be special category data because it is medical information. Additional requirements apply to ensure the data is processed fairly and lawfully. Under these circumstances, it is likely that an employer will be required to have a policy document covering the processing to ensure compliance with key data protection principles including transparency, data minimisation and security requirements.
Employers may be entitled to process such employee information on the basis of the employer’s health and safety duties. This is provided that it can be shown that temperature information is necessary to protect the health, safety and welfare of employees. Only necessary data should be kept - don’t collect personal data that you don’t need. Employers should consider and document the risk to employees and any alternatives to obtaining and processing the data that have been considered. The health and safety context, such as decisions relating to office closures or disinfecting the workplace will also be relevant to justify the processing. (See paragraph 1, Schedule 1 Part 1 of the UK Data Protection Act 2018 and Article 9(2)(b) GDPR).
DISCLAIMER: The materials provided here are for general information purposes and do not constitute legal or other professional advice. While the information is considered to be true and correct at the date of publication, changes in circumstances may impact the accuracy and validity of the information. The CIPD is not responsible for any errors or omissions, or for any action or decision taken as a result of using the guidance. You should consult the government website for the very latest information or contact a professional adviser for legal or other advice where appropriate.
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