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 their policies 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 
  • whilst two doses of vaccination greatly reduce the chance of suffering from COVID-19, no vaccine is 100% effective
  • 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. For further information see the FAQs below and our guide on preparing for vaccination rollout.


Q: What do employers need to know about COVID status vaccine certification (certificates or passports)?

The government is considering whether to introduce a vaccine certificate or passport system. Terminology for vaccine passports varies but the UK government repeatedly uses the term ‘COVID status certification’. COVID status certification aims to indicate a person’s vaccine status to show they are at reduced risk of transmission; any such system is also likely to cover a recent negative test, or proof of natural immunity after having COVID-19. However, the proposals under consideration are causing political divisions and may not be implemented.

The government have made it clear that any domestic certification scheme will not be introduced before either the 12 April easing of lockdown or the 17 May measures enabling pubs and restaurants to serve customers indoors.

Possible methods

A certification system could allow vaccinated people to travel, attend settings where people are at high-risk, or visit mass events. Proof of status could reduce social distancing requirements in other settings such as pubs or restaurants. The preliminary government indications are that certificates would cover test results and evidence of having natural antibodies as well as vaccination. The potential status certification could therefore:

  • Cover those who have received a vaccine, had a negative coronavirus test or have contracted and recovered from COVID-19 within the past six months. Although certification may also cover those who have contracted COVID and have built up immunity, SAGE advised in June 2020 that uncertainties around antibody tests make this inadvisable.
  • Be used in allowing people to travel internationally.
  • Possibly be used to enable a return to theatres, nightclubs, and mass events such as festivals or sports fixtures. It is more debatable if such measures could be used in pubs or restaurants to minimise social distancing, but they would not be used for public transport and essential shops and services.
  • Contain temporary measures used for a period after all adults have been offered a vaccine, until the threat from the pandemic recedes.
  • Allow exemptions for people for people for whom
    vaccination is not advised and repeat testing is difficult.

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. The UK has funded trials of several potential systems including incorporating a vaccine certificate into the existing general NHS app (different to the NHS COVID-19 contact tracing app). The methods of proving status may need to cover both digital and non-digital form. 

Review

A review of whether such a system is necessary is being undertaken, and the government will make final recommendations before step four of measures to ease lockdown - which is due around 21 June at the earliest. On 5 April the government published an update on its review. The review is being headed by Michael Gove and is looking at the impact of certification on reducing risks as lockdown measure ease.

Previous indications suggested compulsory status certification would not be introduced. However, the 5 April 2021 update stated that the government now believes that COVID-status certification could have an important role to play both domestically and internationally, as a temporary measure. COVID status certification therefore seems inevitable for international travel, but no final decision has yet been made on whether COVID status certification will be needed for entry to events in the UK. Preliminary indications are that is likely to be implemented at least for some events. Discussions have also been taking place across Scotland, Wales and Northern Ireland.

The review remains politically sensitive and is specifically considering privacy and ethical issues, plus equalities, legal and operational questions.

What can employers do pending the government review?

The final review will address whether employers can request COVID certification. The preliminary indications from the review suggest that essential shops and services should never require COVID status certification. However, it seems likely other businesses may be left to make their own decisions.

The Prime Minister has already indicated that those who can't have a vaccine should not be discriminated against and it appears that any system will be focussed primarily on international travel and mass events rather than access to workplaces.

Employers who can wait should avoid making final decisions until the outcome of the final review in June. 

Vaccine minister Nadhim Zahawi stated in early March 2021 that people should currently ask their GP for proof that they had been vaccinated if necessary. As COVID-19 vaccination (like other vaccination) is currently encouraged but is not compulsory in the UK, proof of being vaccinated currently relies on a vaccination cards, and details on medical records.

In the future employers may need to modify existing workforce management systems to recognise any new records. For example, a meat packing plant could use electronic vaccine passports to determine who can safely return to work on production lines.

Return-to-work processes may need to involve updating such systems so employers can risk assess the return to the workplace, taking into account both physical measures and mental wellbeing. Until the government review is complete employers will need to make their own decisions about asking for proof of vaccination balancing the potential discrimination and data protection risks, for information the data protection issues involved see Q: What systems do we need to put in place for handling data from testing? 

Vaccine passports may assist with a return to normal life and reduce risks of virus transmission. The use of vaccine certification seems certain for international travel and possible for mass events, but the extent of domestic use beyond that seems less likely given the political lack of consensus. Services and businesses that struggle to operate under social distancing measures could benefit from a certification system although there is an administrative burden too. A further announcement will be made before 21 June 2021. Employers should stay up to date with the latest government advice and await the outcome of the review.


Q: How should employers encourage COVID-19 vaccination?

Generally, whilst vaccination is encouraged in the UK, other vaccines such as flu have not been made mandatory; this is also the case for COVID-19 vaccination. 

Encouraging and reassuring employees regarding vaccination is the best course of action rather than overtly persuading them, leading by example and sensitively engaging with staff about the safety, and benefits of vaccination with the latest information.

Employers should refer to the government website and the NHS website for the latest information. More information is also available in our guide Preparing for the COVID-19 vaccination.

Q: Are employers obliged to offer private vaccines for staff once these become available?

There is no obligation to offer vaccination, but employers may eventually be able to pay for vaccines privately. It is likely that repeat vaccination will be needed, as it is not certain how long immunity lasts after the initial vaccine. At some point private vaccination could be offered as a regular work benefit (like the flu vaccine) although there is likely to be a state programme for re-vaccination. This is likely to take some time and employers do not have to decide whether to offer private vaccines as yet.


Q: Do we have to offer workplace testing? Can we obtain free tests?

It is a voluntary decision for employers to offer testing for their staff. There is no Government guidance that requires that employers carry out testing on all employees, but the government have emphasised that employers should regularly test their staff, and are attempting to raise awareness and encourage more businesses to test.

Employers in England of any size who registered by 12 April 2021 can offer free rapid coronavirus tests for asymptomatic staff to take at home under the extension of a government scheme. This is for employees who cannot work from home. The employers who registered will receive lateral flow tests in bulk free of charge until 30 June.

Between February and April 2021 the government has progressively announced more COVID testing for both individuals and in workplaces in England. As the devolved nations can set their own coronavirus regulations Scotland, Wales and Northern Ireland offer separate advice on testing. In addition to free test kits for employers in England, asymptomatic testing for those in the community is also available until the end of June. This is for people who can’t access workplace testing. The government’s postcode checker identifies places offering rapid testing and local authority websites also contain information.

In England lateral flow testing is offered to businesses  to test employees twice per week. Employers must set up a test site and train staff to operate it.

Where on -site testing is not possible the government has also made rapid testing home testing available for employers with over 10 employees. For example, such employers may have lack of space or multiple sites making on site testing difficult. Therefore from 6 April they can access asymptomatic home tests using ‘workplace collect’.

Employers with fewer than 10 employees can get twice weekly testing through the community testing programme, this is for staff who are not showing symptoms.

The programme offers free tests for employers to test their workforce twice a week. For businesses that remembered to register by 12 April the lateral flow tests will be free until 30 June. The provisions are:

  • Home kits are available for firms with more than 10 employees where on-site testing is not possible.
  • Workplaces that are currently closed should still register so you can order tests in the future.
  • Employers are only entitled to obtain the testing kits if their business is registered in England and the employees cannot work from home.
  • The service is not for employees who have symptoms. Anyone with symptoms should order a PCR test and remain at home.
  • Employees should notify a positive test result to the employer and the NHS and then obtain a confirmatory PCR test.

The wider availability of the rapid flow tests is part of government policy as lockdown measures ease between April and June. Lateral flow tests are the ones which can give results in less than 30 minutes but there can be false positive tests in about 0.3% of cases. Employees who are not entitled to tests under this scheme because they are working from home may be able to get a lateral flow test from a local test site instead.

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. Those who can work from home should continue to do so.

Initially, employers with over 250 employees were eligible to access lateral flow tests this has now been extended to more businesses and to include home test kits.

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).

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).

A different secondary schools testing programme with testing twice a week applies in schools.

Further information on the rapid workplace testing scheme is available from the government website.


Q: What are the factors to think about when considering whether to test 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, employee refusal, overall COVID-19 secure procedures and risk management.

The government has progressively introduced a scheme for firms to order free LFD tests for employees (see Q: Do we have to offer workplace testing? Can we obtain free tests?). There is also government guidance for employers who want to offer workplace testing for asymptomatic employees, including advice on the process, results and communicating results to staff. Employers will  have to consider whether to undertake twice weekly or other regular testing of their workforce.

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.

Private providers

In addition to the government free workplace test kits employers can engage third-party providers to operate an in-house testing system. There is guidance for third-party testing companies to follow. The government has also published a list of private testing providers which meet the requisite standards including reporting results to Public Health England and having the relevant systems in place to report any issues.

Choice and quality of tests

Before deciding to test staff, employers should decide upon the type of testing to be used, the reliability and longevity of the test and what the test result means. Employers should keep up to date with the forms of testing available as the science is evolving rapidly. The main forms of test are summarised below. Remember that anyone displaying symptoms should be referred to the NHS Test and Trace service. Employees can 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.

Testing for current infection

Nose or throat swabs check if the employee has coronavirus now. 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. 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. There was previously a requirement for a confirmatory PCR test following a positive LFD test, however this was suspended on 27 January 2021 due to high rates of infection.

  • 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. The PCR tests are better at finding smaller amounts of the virus, especially early in infection.

  • LAMP tests (loop mediated isothermal amplification) provide results in about 90 minutes, but trained staff are required to operate the 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 any 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.

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. MHRA has published guidance on reporting to the Yellow Card scheme for health care professionals.

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.

Risk assessments

Employers must consider whether to test as part of their risk assessments, there may be one-off testing when workplaces reopen or more likely an ongoing testing programme. A testing programme may reduce the risk of a workplace outbreak- but protecting the health and safety of employees, and the views of the employees themselves needs to be balanced.

Time off for testing

As LFD tests become more widely 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.

For example, in some sectors such as health or care work if a worker does not have an LFD test they would not be allowed to attend work, regardless of whether they are showing symptoms or not. Clearly in this situation regular testing should be classed as working time and should be included when calculating whether the NLW/NMW has been paid.

Accuracy

LFD tests are not as accurate as the laboratory-based tests. 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. Research from Public Health England and Oxford University found 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 additional measures should be undertaken to support the testing programme and NHS Test and Trace. Whilst testing is one helpful tool, employers must continue to ensure adherence to COVID-secure measures (including distancing, sanitation, ventilation and high grade PPE and so on) 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.


Q: What are the key legal aspects to consider if employers are deciding whether to offer employees in-house coronavirus testing for employees?

The key legal aspects to consider if employers are deciding whether to offer employees in-house coronavirus testing relate to existing legal obligations, including health and safety, general employment law and data protection. For other practical aspects see our FAQ above.

Agreement

Employers usually need employees’ agreement to being tested. 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). See our Q: Do we need to ensure employees have agreed in their contracts to cover our  approach to testing?

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. For further information see the Q: What systems do we need to put in place for handling data from testing?

Unfair treatment

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: Do we need to ensure employees have agreed in their contracts to cover our approach to testing?

Ideally employers should ensure they have employees’ agreement to testing. Unfortunately, employees’ agreement to be tested is only the starting point because how this can be enforced may be more complex. 

The easiest solution is if employees just agree to take the test. They could also agree to amendments to their employment contracts regarding ongoing testing or sign a variation letter assenting to testing. The problems arise with the enforceability of this if a minority of staff refuse; see our Q: What if employees refuse to be tested? Would anyone have a legitimate reason to refuse a test?

Agreement

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 original contractual clause and no subsequent agreement to being tested employers could try and insist employees must agree because to refuse would breach the following obligations:

  • The implied term to obey the reasonable instructions of the employer. Because of the health, safety duty below it could be a reasonable management instruction to require private testing.
  • The obligations to ensure staff health and safety under the Health and Safety at Work Act 1974.
  • The implied duty of mutual trust and confidence to other employees- justifying requesting other employees to take a test.

The best course of action will likely be for employers to encourage staff to agree to be tested and publicise the benefits. Employers can emphasise the extent of their duty to protect the health and wellbeing of other employees.

If employers try to make testing a compulsory condition of employment the legal problems could include discrimination claims on grounds of disability, pregnancy or religion and belief, or unfair dismissal claims or constructive unfair dismissal if employers discipline, dismiss or threaten employees because they refuse to be tested. See our Q: What if employees refuse to be tested?

Overall, it is safest for employers to follow government and NHS professional advice including encouraging testing and obtaining employees’ agreement. As the vaccination programme is rolled out monitored testing may become less of an issue but in the meantime employers should keep up to date with the latest government advice.


Q: What if employees refuse to be tested?

In some circumstances if employees refuse to be tested an employer could consider taking disciplinary action against them. However, the testing should be necessary and proportionate and the employer should consider the reasons why the employee refused as some may have a legitimate reason for refusal.

Agreement

The starting point is that employers usually need employees’ agreement to being tested. For further information on the importance of agreement see the Q: Do we need to ensure employees have agreed in their contracts to cover our approach to testing?

Reasons for refusal

There could be a range of reasons employees may give for refusing testing. Some of these reasons for refusal may be legitimate. The extent to which the refusal is legitimate will depend on the circumstances of the particular employee and employer and the extent to which the risk of COVID-19 can be managed through other measures.

If there is no agreement and no contractual clause to be tested employers must try and rely on the implied duties to obey an employer’s reasonable instructions, the implied term of trust and confidence and their obligations to ensure staff health and safety under the Health and Safety at Work Act 1974.

These duties and to ensure the health, safety and welfare of staff, an employer can argue it is a reasonable management instruction to be tested. Employees’ refusal to comply could be in breach of these duties as well as a failure to comply with their Health and Safety obligations but this depends on the overall context. Employers may be able to start a disciplinary process for employees who refuse (as outlined below).

The reasonableness of any refusal to be tested should take into account if the employee is exhibiting symptoms. If they are symptomatic, the employee must be tested for COVID-19 to protect the health and safety of other staff whether workforce testing is in place or not. A negative result would mean that employees could return to work immediately rather than having to self-isolate. In this circumstance, if employees refuse testing the employer may be justified in taking disciplinary action.

For employees with no symptoms the reasonableness of refusal of testing is much more complicated, and depends on each individual case and the reasonableness of the testing retirement.

Disciplining employees who refuse

Employers may decide (based on their health and safety duty to other employees) that testing is so critical to their workplace safety measures they will discipline those who don’t agree. Disciplining employees who refuse testing for COVID-19 basically involves the same issues as asking employees to disclose a previous test or attempting disciplining them for failure to agree to vaccination. The legal hurdles and risks of disciplining employees who refuse testing depends on the nature of the workplace, the reasons for the refusal, any local outbreaks, whether there are particularly vulnerable colleagues and the extent of risk.

The risks, in summary, are data protection, disability, philosophical belief or pregnancy discrimination or unfair dismissal claims. However, whilst employees may be able to show they are unable to have a vaccine as a result of their disability or pregnancy etc it is hard for employees to argue that their protected characteristic prevents them just from being tested. The risk of a genuine discrimination claim is low in relation to testing but more likely regarding vaccination. It is possible an employee with a phobia of medical procedures may be able to establish a disability.

If alternatives such as working from home are available this makes it harder for employers to justify testing. Employees may argue that testing is not necessary or proportionate because the employer’s health and safety obligations can be met in other ways.

Ultimately employers have to decide if they are prepared to risk disciplining or even dismissing employees who refuse to be tested. See our FAQs on lateral flow testing and on the legal aspects of testing for further information.


Q: What systems do we need to put in place for handling data from testing?

An employee’s COVID-19 test result counts as processing personal data for the purposes of the Data Processing Act 2018 (DPA) and the General Data Protection Regulation 2016/679 (GDPR). Information about an employee’s health is a special category of data (sensitive personal data) so special rules apply.

Policy

Employers should consider putting a COVID-19 testing policy in place to help ensure transparency in the need for the testing, confirming 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.

Employers should also incorporate the following into their systems:

  • Communication plan: As well as data protection systems employers need to consider a communication plan. 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. 

  • Data protection impact assessment: Employers should have a data specific impact assessment showing that their approach to testing is reasonable, fair and proportionate.

  • Transparency: Employers need to openly give their employees certain information before carrying out any testing, including what the data will be used for, who it will be shared with, how long it will be kept for and what decisions will be based on the test result.

  • Lawful grounds: In accordance with the GDPR and DPA, there must be lawful grounds for processing special category information. Employers should document their lawful ground. Most employers rely on employees’ consent to obtain medical information and process sensitive personal data. If the employee does not consent, employers will not normally be entitled to the information. However, consent is not enough, and processing of health data must be justified. Special category data can be processed lawfully if it is necessary for the performance of a task in the public interest. Therefore, the processing can be justified to comply with employment and social protection law obligations and for reasons of public interest in public health. Data protection therefore allows personal data to be used to help implement health and safety measures in the workplace or other action to protect the public.

The Information Commissioner's Office has published guidance for businesses on managing data protection obligations during the pandemic on the its website, including FAQs on data collection relating to COVID-19.


Q: Do employees who have been vaccinated still need to be tested?

Yes, if employees have had the COVID-19 vaccine it is sensible to still test them as a precaution. The reason for this is that government advice says once vaccinated people must keep following the health guidance and rules.

The vaccine reduces the chance of severe effects of COVID-19 but the extent to which people who have been vaccinated can catch COVID-19 and pass it on to others is not entirely clear. Until very high proportions of the population are vaccinated, all protective workplace behaviours, such as maintaining a safe distance, limiting social or physical contact, wearing face-coverings, ventilating office spaces with fresh, and regular hand hygiene, and premises cleaning must continue after vaccination. This includes testing where it is being used as part of an employer’s response.


Q: How does coronavirus testing for employees affect sick pay?

An individual who has tested positive on a lateral flow test 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. The current NHS guidance is that an LFD test should be verified with a PCR test, if that is negative the employee’s self-isolation period can end.

Employees who test positive but are asymptomatic may not fall within an employer’s sick pay policy as they are not actually absent due to illness. Employers can amend their sick pay policies to include coronavirus self-isolation and household members testing positive as falling within the sick pay policy. Employers who decided to introduce workplace testing may have to do this.

An employee may be entitled to SSP if they meet the qualifying earnings amount but employers may decide to offer enhanced sick pay above SSP to ensure the testing regime is followed properly. Following a positive test staff may be reluctant to attend for voluntary testing if they then only get SSP while self-isolating. Employers can provide full salaries for those who receive a positive lateral flow test during their period of isolation until the confirmatory PCR test, or simply allow the employee to work from home if possible.

Lower paid employees may also be eligible for a one-off payment of £500 from the Test and Trace Support Payment Scheme.

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 we have a legal right to take employees' temperatures at work?

The legal issues involved in testing temperatures at work involve contractual issues and data protection laws (see below). With the increased availability of coronavirus testing this may be a more effective tool for employers to adopt as part of their COVID-19 preventative measures. Someone who is infected may have no raised temperature or show no symptoms at all. Employers should remember that temperature-checking may be straightforward but will not pick up asymptomatic cases and the government is encouraging workplace lateral flow testing following increased availability of these tests. However, any method of managing risk of COVID-19 infection in workplaces is worthy of consideration. 

Overall, the Government's current advice encompasses the five steps for working safely, along with sector-specific guidance. The official advice in England until at least the end of June 2021 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 and those in certain sectors such as hospitality are progressively returning to work. Avoidance of public transport if at all possible may be advisable. The detailed guidance does not address general workplace temperature testing, so the decision is left to employers in many cases.

Eligibility for coronavirus testing

Regular rapid-result coronavirus testing is increasingly available to workplaces and individuals even if they are asymptomatic. On 5 April the government announced that everyone in England can access free, regular, rapid coronavirus testing from 9 April onwards. This includes the ability for individuals and employers to obtain tests. For further information on the scheme for employers to obtain free LFD tests for employees see our Q: Do we have to offer workplace testing? Can we obtain free tests?

In addition to the availability of asymptomatic testing it is essential that all employees who have symptoms should be tested by making an application through an online portal and either going to a venue to obtain testing, or obtaining a test by post.

The government issues updated detailed guidance on testing using lateral flow and PCR tests. 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 Government requirements for temperature testing employers can decide if there is any merit in temperature testing especially with the availability of LFD and other form of 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 include temperature testing as part of  discharge their health and safety duties and consider it as part of their 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.

Contractual provisions

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.

Data protection

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).


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.

Equality Act
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. The CIPD has contributed to a COVID-19 return to work guide by SOM which offers guidance from Occupational Health Professionals on how workers can manage getting back to work after COVID-19 infection and Long COVID. The COVID-19 return to work guide for recovering workers is available to download from the SOM website.


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 the end of September 2021 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. 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.
Permanent health insurance (PHI)
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.  

Disability
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).

The CIPD has contributed to a COVID-19 return to work guide by SOM which offers guidance from Occupational Health Professionals on how workers can manage getting back to work after COVID-19 infection and Long COVID. The guide for recovering workers is available to download from the SOM website.


Q: How should we support pregnant employees?

The Government has produced guidance for employers to make workplaces COVID-secure and so employers should keep checking the government website for the latest information.

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. 

Vaccines

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.

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.

For those who have not yet been vaccinated from 16 April 2021 the Joint Committee on Vaccination and Immunisation (JCVI) has advised that pregnant women in the UK can be offered the COVID-19 vaccine. The advice says that  pregnant women should be given the Pfizer or Moderna vaccines where available as there is more evidence relating to these vaccines. Although there is no evidence to suggest that the Astra Zeneca vaccine is unsafe for pregnant women, more research is needed. The JCVI also say that, as a precaution, people under the age of 30 with no underlying health conditions should be offered an alternative to the AstraZeneca vaccine where possible.

Evidence from the vaccine studies that have been reviewed by the MHRA, World Health Organisation and the regulatory bodies in the USA, Canada and Europe and have raised no concerns about safety in pregnancy. Public Health England advises that: 

  • The COVID-19 vaccines available in the UK have been shown to be effective and to have a good safety profile. The MHRA has confirmed that the COVID-19 vaccines are generally safe and effective. 
  • There have been no specific safety concerns from any brand of coronavirus (COVID-19) vaccine in relation to pregnancy and all vaccines being used in the UK have undergone full clinical trials. 
  • These COVID-19 vaccines do not contain organisms that can multiply in the body, so they cannot infect an unborn baby in the womb.
The overall advice stil states that 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. Discussions should include which vaccines they should receive and the latest evidence on safety. For example, pregnant women who are frontline health or social care workers, including carers in a residential home may have a higher risk of exposure to COVID-19 and may decide it is better to receive the protection from the vaccine.
 

The potential benefits of vaccination are particularly important for those who are at very high risk of catching the infection or those with clinical conditions that put them at high risk of suffering serious complications from COVID-19. 

As the effects of infection in pregnancy remain under consideration, employers should take great care to protect both pregnant women who have previously been vaccinated and those who have not. The following points should be considered until further government advice is given.

Pregnant employees
  • 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 employees should not be vaccinated unless they are at high risk.
  • 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). 
  • If employees have had the first dose and then become pregnant they should delay the second dose until after the pregnancy is over (unless they are at high risk).
  • Although the vaccine has not been tested in pregnancy, individuals can decide that the known risks from COVID-19 are so clear that they wish to go ahead with vaccination.

Employees who are breastfeeding or trying to conceive

Women who are planning pregnancy, or have recently given birth can be vaccinated with both doses of any vaccine, depending on their age and clinical risk group. 

It appears that women who are breastfeeding can also be given any vaccine. 

Precautionary government advice remains 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. The  JCVI and the World Health Organisation has recommended that a vaccine can be received whilst breastfeeding. However, employees who are breastfeeding, may decide to wait until they have finished breastfeeding before having the vaccination.

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 with any vaccine once they are offered it, but it is probably easier to 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 safety

If 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 were 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 have fallen in the shielding category, although the formal shielding programme has now ended. Most CEV people have been fully vaccinated, pregnant women who are not vaccinated and 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).

Maternity leave

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 will rise from £151.20 a week to £151.97 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
  • carers
  • 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. 

The main purpose of face coverings is to protect other people (not the wearer) from coronavirus from people who are contagious, including those who have no symptoms. 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.

Potential changes
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.

Key points

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.

It is worth noting that in the USA people who have been fully vaccinated against COVID-19 can gather unmasked with others who have been vaccinated. The UK has not made similar recommendations for vaccinated people yet but may do so. Until further notice even vaccinated people in the UK must continue to wear face coverings where social distancing is not possible for example on public transport, and in shops.

Once more people have had a vaccine and more is known about the transmission of COVID-19 face masks or coverings may be reviewed.

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.

What should they be made of?
In some countries, such as Germany and Austria, medical-grade masks (such as disposable surgical ones) are compulsory on public transport and in shops. The highest level of protection is provided by masks know as FFP3 such as those worn by healthcare workers. These are non-woven fabric, which is better at stopping spray and droplets. The World Health Organization says it has no plans to change its guidance recommending fabric face masks for the general public, but cloth face coverings do not give as much protection. Other tips include using masks that have three layers and fit snugly over the mouth, nose and chin. Other tips include having adjustable or knotable ear loops for a better fit and having masks with a nose wire.

Sectors where face coverings are required
From 24 September 2020 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:

  • shops
  • supermarkets
  • bars
  • pubs
  • restaurants
  • cafes
  • banks
  • 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 2020. Customers in private hire vehicles and taxis must wear face coverings. 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.

Exceptions
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.

Penalties
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: 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 2020.

Risk assessments
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.


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.


If you have other queries about COVID-19 not covered above, please contact the CIPD member employment law helpline on 03330 431 217 or visit the Community pages

We know that our members and customers are facing challenging times and we are here to help you. Due to a high number of calls we apologise that your wait time may be longer than usual. We appreciate your patience and will connect you to an expert adviser as soon as we can.

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