CIPD experts, leaders and practitioners tackle the key issues and questions around the pandemic
Q: What do employers need to know about COVID status vaccine certification (certificates or passports)?
COVID status certification indicates a person’s vaccine status to show they are at reduced risk of transmission; any such system can include vaccination details or a recent negative test. Proof of natural immunity after having COVID-19 can also be included.
The proposals surrounding the use of certification have caused political divisions. A vaccine certificate, initially used primarily for travel, called the NHS COVID Pass, was introduced on 17 May 2021. Evidence of vaccination status on the pass is only available to those vaccinated in the UK, EU, or USA. Since 19 July 2021, higher risk venues including nightclubs and large events have been encouraged to check the pass before admitting customers. Despite earlier plans to introduce the COVID Pass in England, on 12 September 2021 the health secretary announced that plans to introduce vaccine passports for entry to nightclubs and large events in England would not go ahead. The scheme began in Scotland on 1 October 2021, when proof of COVID status vaccine certification will be made mandatory for entry to nightclubs and other large events (see below). Employers are encouraged and supported to use the NHS COVID Pass in other high-risk settings. Vaccine passports have also been introduced for nightclub and large event entry in Wales from 11 October.
There is no internationally applicable COVID Status Certificates for international travel although nothing has been finalised as yet. Despite vaccination certification, travellers may still need to follow other rules when travelling, such as pre-departure and arrival testing.
The EU has a digital certificate system applicable throughout its member states including Ireland. Other countries (such as Israel and some individual US states) have developed their own digital apps.
The World Health Organisation currently recommends against countries requiring proof of vaccination due partly to lack of access to vaccines in some countries, and partly the lack of evidence about the long-term protective effects of vaccination. WHO have indicated that the current International Certificate of Vaccination and Prophylaxis (or "Yellow Fever card") may be accepted as a certificate once vaccination certification is agreed. Many countries including in the EU will already accept UK COVID-19 vaccination records.
COVID-19 status is shown in the UK by using the NHS COVID pass to show coronavirus vaccination details or test results. The pass includes naturally acquired immunity, shown by a positive PCR test in the last six months, followed by recent negative test results. Individuals registered at a GP surgery in England can download and register on the app which then gives a QR code confirming their vaccination status.
The system incorporates a vaccine certificate into the existing general NHS app (different to the NHS COVID-19 contact tracing app). This modified NHS app is based on the app that many people use to book appointments with their GP, so it can now show whether people have been vaccinated and tested for the virus. This has been adapted for international travel, with alternative paper documents for people who do not use smartphones.
Currently people are most likely to be asked to show their Pass to get into events such as a concert or sporting event depending on the entry requirements for the venue or the country being visited.
The certification is available to people two weeks after the second dose of the Moderna, AstraZeneca or Pfizer vaccines, or one dose of the Janssen vaccine. Alternatively it can be used for people who have had a negative PCR test or rapid lateral flow test within the past 48 hours. A positive PCR test will also lead to an NHS COVID Pass after the person has finished self-isolating and for up to 180 days after taking the test. The NHS COVID Pass is not available for children under 15.
The paper version of vaccination status can involve documents being printed as a PDF or sent by email or post. An NHS COVID Pass letter sent in the post shows vaccination status only (meaning the person has been vaccinated against COVID-19) but it does not show COVID-19 test results or natural immunity.
You do not need to be registered with a GP surgery or have an NHS login to obtain a COVID-19 post-vaccination letter. You can get a letter by:
- requesting a COVID Pass letter online
- calling 119 (within 4 weeks' before your expected travel date if that is why the paper version is needed).
High risk events
In Scotland from 1 October 2021 proof of vaccination is legally required for entry to nightclubs and other large events (although enforcement action against businesses who do not comply with the rules did not begin until 18 October). A similar scheme is in operation in Wales from 11 October. Plans for a similar scheme in England have been scrapped.
It will therefore be law that certain venues in Scotland, including nightclubs, must check NHS COVID passes before allowing entry. Some nightclubs and other venues already request customers to confirm their vaccination status either via the NHS app or by email.
As well as nightclubs, the changes in Scotland and Wales affect indoor spaces such as music venues and large outdoor events such as festivals and large spectator sports. Vaccine certification will be required in the following settings:
- adult entertainment venues
- unseated indoor live events, with more than 500 people
- unseated outdoor live events, with more than 4,000 people
- any event with more than 10,000 people.
Issues for employers
Other than for large events, vaccination certification is not legally required as a condition of entry to any venue or event in the UK.
Employers can make use of the NHS COVID Pass certification if they wish to do so. Employers could ask their employees to show their NHS COVID Pass as a condition of returning to the workplace or participating in certain activities. However, employers who then wish to insist upon vaccination for those unable to produce a certificate will face numerous employment and data protection issues. These are summarised in our guide on COVID-19 vaccination.
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 that employers can risk assess the return to the workplace, taking into account both physical measures and mental wellbeing. Employers will need to make their own decisions about asking for proof of vaccination balancing the potential discrimination and data protection risks. For information on 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 will continue for mass events at least in the short to medium term, but the extent of domestic use beyond that seems more uncertain, given the political lack of consensus. While cases are high and rising, employers need to continue to act carefully and remain cautious and should stay up to date with the latest government advice.
Scotland, Wales, Northern Ireland
COVID-19 vaccination status from vaccinations received in Scotland are obtained by requesting a digital QR code (available from 3 September 2021) or a printed paper copy of their status online or by telephoning the COVID-19 Status Helpline to request one by post. The letter can be requested by anyone who has had a full dose of the coronavirus vaccine including those aged 16 and 17. People must request a status letter well in advance of overseas travel. As explained above COVID passports are required for nightclubs and certain events from 1 October 2021.
The NHS COVID Pass to show vaccination status in Wales can be obtained by those aged 16 or over who have been vaccinated in Wales. The COVID Pass can be obtained online and downloaded or printed as a PDF document. People in Wales cannot currently use the NHS App to access their NHS COVID Pass and vaccination status. A digital COVID Pass is recommended rather than a paper version. It can be shown on a phone, tablet or laptop and is predominantly to show vaccination status when travelling abroad. A paper version of the COVID Pass is available for those unable to use the digital NHS COVID Pass or for those who would like a bilingual certificate. Welsh vaccination status is available if two weeks have passed since a full course of the vaccine. As explained above COVID passports are required for nightclubs and certain events from 11 October 2021.
Northern Ireland has its own an official COVID-19 vaccine certification system based on an app. Prior to this interim arrangements allowed people to travel using an interim proof of vaccination document.
Q: Is vaccination being made compulsory for all those working in the health or care sectors?
From 11 November 2021 COVID-19 vaccination will effectively be compulsory for those working in care homes in England. The legislation applies to all Care Quality Commission-regulated service providers of nursing and personal care, in care homes. Operational guidance is now available on the government website. On 9 September 2021 the government launched a consultation on mandatory jabs for frontline NHS and care workers in England.
For those working in care homes:
- Workers who can prove they are clinically exempt do not have to have the vaccination. To claim an exemption, the worker must have clinical reasons they cannot be vaccinated. Religious and philosophical beliefs do not provide a specific exemption.
- Care workers have 16 weeks from the introduction of the legislation on 22 July to decide to take up the offer of vaccination. This means that 16 September is the last date for care workers to get their first vaccine, so they are fully vaccinated by 11 November.
- The rules mean anyone seeking to work in care homes will need to be double vaccinated. This includes agency workers, volunteers, temporary healthcare workers and tradespeople. As well as care staff, the Regulations ban a large variety of unvaccinated tradespeople who might need to visit a care home.
- Visitors coming to see care home residents, the residents themselves, emergency help providers (for example ambulance, emergency plumbers) and children under 18 are excluded from the new requirements.
Q: What does the new requirement for mandatory vaccination of care home staff mean for employers in this sector?
The new requirement for mandatory vaccination of care home staff means that employers in this sector should encourage any remaining unvaccinated staff to have the vaccine in preparation for 11 November. After this date unvaccinated people are not permitted to enter a care home at all, unless they can show an exemption.
Procedures will be needed to deal with staff who have not had both vaccines by 11 November. Redeployment or a temporary cessation of duties may be necessary for those who have not yet had both vaccines.
- explain categories of exemption and address measures for other people such as pregnant women;
- state if the measures are contractual or merely policy;
- explain time off available for vaccination;
- explain vaccination is part of overall COVID-secure measures and is not a substitute for other health and safety measures;
- possibly offer incentives for employees to take up the vaccine.
The mandatory vaccination applies in in England only. The care home operator must ensure that all people do not enter the premises unless they have provided evidence that they have been vaccinated with the complete course of doses of an authorised vaccine or have clinical reasons to avoid vaccination. This applies to staff and other people entering the premises of the care home, unless they fall into an exempt category (see below). People who do not enter the premises, for example, gardening staff in a care home would not be covered by the legislation.
Vaccinations are therefore effectively compulsory for any staff whether full time, part-time, paid or volunteers who provide nursing or personal care. Employees and agency staff are also covered. Other workers who enter care home premises such as healthcare workers, tradespeople, hairdressers and Care Quality Commission (CQC) inspectors must also be vaccinated.
People with clinical reasons not to be vaccinated are exempt. Mandatory vaccination will not apply to people entering a care home to provide emergency assistance, including ambulance staff or those carrying out urgent maintenance work.
There is no legal requirement to vaccinate people under 18 years of age, so children are exempt from the need to be double vaccinated before entering the home. In addition, residents, relatives or friends who are visiting are exempt, plus anyone reasonably necessary to provide comfort or support following the death of a friend or relative.
- Insert a new contractual term into contracts and hope employees will agree.
- Issue an instruction to be vaccinated backed up by disciplinary proceedings and potential dismissal.
People with clinical reasons not to be vaccinated are exempt from mandatory vaccination. The consultation suggested that the reasons listed in the Public Health England (PHE) ‘green book’ may be used, which should include allergies and possible certain phobias.
For staff who are medically exempt due to clinical health reasons, employers should complete specific risk assessments for them and take appropriate actions to mitigate risks.
Employers generally do not have to provide paid time off for medical appointments unless the contract provides for this, but as vaccination is mandatory in this sector employers should allow time off for COVID vaccinations anyway to promote good workplace relations. In practice, most employers will allow paid time off for this and other medical appointments. Given employers’ legal obligation to provide a safe place of work, it is arguable that refusal of paid time off for vaccination would be a breach of this health and safety duty or it could be a breach of the mutual duty trust and confidence.
For employees who are potentially disabled under the Equality Act, allowing time off for vaccination could be regarded as a reasonable adjustment especially if they are clinically vulnerable.
Given the 16-week grace period before the regulations come into force, this should allow employers time to ensure staff who have not yet been vaccinated have sufficient time to obtain both doses.
The NHS app and non-digital alternatives can be used to provide evidence to employers of vaccination (or exemption) status.
For information on staff who refuse or who cannot be vaccinated see Q: How should we deal with employees in this sector who cannot be vaccinated or refuse vaccination? (below).
The vaccination requirement applies to all staff working in elderly care homes registered with the Care Quality Commission in England. In the other devolved regions the position is:
Scotland: is not planning to make the vaccination of care home workers compulsory. This is because Public Health Scotland figures show 100% of care home workers have received both doses of vaccination.
Wales and Northern Ireland: are taking a similar stance to Scotland, so vaccinations will not be made compulsory for care workers. Wales prefers an approach of encouragement of the vaccine, and Northern Ireland has had a large uptake already and is not introducing a mandatory policy at this time.
Q: How should we deal with employees in the care sector who cannot be vaccinated or refuse vaccination?
How employers in the care sector deal with employees who refuse vaccination will depend upon their reasons for doing so. For example, employees may refuse because of concerns about potential allergies, a phobia of needles, because they are pregnant or concerned about clot risks. Employers should always discuss employee’s concerns and take them seriously, by listening to their reasons for refusing vaccination and explain, encourage and reassure staff.
Whatever an employee’s reasons employers must consider each case individually (as explored in further detail below) and in accordance with the government guidelines when these are released.
Employees who cannot be vaccinated for clinical reasons
Employees who refuse due to health reasons may have a clinical exemption from COVID-19 vaccination. The legislation just refers to those who are clinically exempt but it may be difficult for employers to determine when this medical exemption applies. It is likely to follow the Public Health England guidance Green Book, JCVI guidance and medical advice. The Green Book says that specific vaccinations may be contra-indicated if, for example, there is a history of a confirmed anaphylactic reaction to a component of the vaccine or if a person has a primary or acquired immunodeficiency. However, the exemptions do not automatically apply and in some instances, the benefit of that vaccination may outweigh the risk, even in someone with a specific condition.
For staff who are unable to be vaccinated due to health reasons, and can establish a clinical exemption, they will need to produce some medical proof of this and can then continue with their employment, but at the very least employers should complete individual risk assessments and take appropriate actions to mitigate risks.
Employees who refuse the vaccine without a clinical exemption
The key legal problems with mandatory vaccines are the risks associated with enforcement and dismissing employees who refuse to be vaccinated.
If employees choose not to be vaccinated, but vaccination is clinically appropriate for them, then the legislation states they can no longer enter the premises of an English care home setting.
If employees can’t be encouraged by sensitive individual engagement, employers can explore redeployment. It is unrealistic in most care homes to be able to adapt the employee’s work responsibilities or role to enable them to work remotely or in a safer working environment. However, it seems safest to consider any other options before moving to dismiss.
The government have introduced the mandatory vaccination policy through an amendment to the Health and Social Care legislation which contains the fundamental standards requiring care homes to assess the risk of, and prevent, detect and control the spread of infections. The Code of Practice on Infection Prevention and Control and its associated guidance, issued under the Health and Social Care Act 2008 will also be amended. Employers will be able to give employees time to decide. Unless there is further legislation employers will have to follow a fair disciplinary and dismissal process before dismissing unvaccinated staff. The need to comply with the legislation as part of providing safe care and treatment would count as fair reasons to dismiss. The employer can rely on a number of fair reasons to dismiss, including:
- statutory illegality or breach of a statutory restriction; or
- some other substantial reason to dismiss in the care sector; or
- dismissal on grounds of incapability.
Potential legal issues
Care sector staff, like employees in other sectors with over two years’ service who refuse vaccination could still try to claim unfair dismissal. Similarly, employees with protected characteristics could claim discrimination. In the care sector though employers have strong legal arguments as they are required to have vaccinated staff.
Unfair dismissal: New employees are unlikely to be able to bring an unfair dismissal claim, unless they can establish a way around the two-year rule. If established employees try to bring an unfair dismissal claim, then employers should be able to defend claims provided they followed all stages of the dismissal process properly and can show any dismissal was handled fairly in the circumstances.
Employers could rely on the reasons listed above such as breach of a statutory restriction as their ground to defend any claims. Ultimately the employer’s argument would be they could not allow an unvaccinated employee to enter the premises, because of the legislation requiring vaccination (the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021).
Discrimination: Similarly, employees with protected characteristics could still attempt to claim discrimination. Examples of some current legal issues summarised below, but now vaccination is mandatory in the care sector employers will at least have the argument that they have to comply with the legislation.
- Refusal due to philosophical belief: Employees with an anti-vaccination belief could argue this is a protected philosophical belief under the Equality Act 2010. Such claims would need to be evaluated by a tribunal. Beliefs (linked to a coherent belief system) need to be worthy of respect, with a coherent belief system behind it. Although the legislation makes vaccination mandatory it does not mention beliefs as a ground for exemption. An anti-vax stance could be claimed to be a protected as a philosophical belief under the Equality Act. There is a risk that any employee who believes in the 'anti-vax' movement could try to claim Equality Act protection which could lead to significant legal costs.
- Refusal due to religious belief: Some employees may refuse to be vaccinated on the basis of their religious beliefs. Religious beliefs do not have to be shared by everybody within that religion. Therefore, an anti-vaccination belief could be held by some people of a certain faith and potentially be protected, even though others of the same faith are in favour of vaccination.
- Other potential discrimination claims: Potential claims include disability and age. Exceptions are made for employees with medical reasons for not being vaccinated. There remains a possibility of age discrimination claims as younger people may not yet had both doses of the vaccine.
Whilst there is a risk of unfair dismissal and discrimination claims, employers do have the argument of justifying their policy. For unfair dismissal there is the arguments mentioned about statutory illegality, incapability, or some other substantial reason. Of course, the dismissal would still have to be handled fairly overall, including a fair procedure. For discrimination claims the employers would need to demonstrate a legitimate aim (eg health and safety) and that vaccination is a proportionate means of protecting others, relying on the fact that vaccination is mandatory in the care sector from 11 November.
Health and safety requirements
These requirements can also be used in the employers’ defence. The current legislation requiring vaccination supplements the care home legislation making vaccination part of an employer’s health and safety requirement to protect both the employee themselves and others around them. Therefore, employees who refuse the vaccine, especially in the health and care sector, could potentially then be dismissed for a health and safety breach. COVID-19 is a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) in certain settings.
Employers should review the government guidance and legislation and plan accordingly either encouraging employees to be vaccinated or, in limited cases, planning to defend any potential claims.
Q: What could this new requirement mean for employers in other sectors?
We now know vaccination will be compulsory for those working in care homes in England (with exemptions for those with a medical condition preventing vaccination). The government are consulting on whether it may be necessary to extend mandatory vaccination to other parts of the health, adult and social care sectors.
The potential consequences include:
- For further sectors who would like to introduce compulsory vaccination, such as employers in sectors where staff work in overseas locations, the care home guidance should be helpful when it emerges. For example, if an employee’s role involves travel, then the vaccine is likely to be a necessary job requirement and the employer may have a fair reason for dismissing any such employee who refuses the vaccine.
- In other sectors unrelated to care or travel where employers may simply prefer a mandatory vaccination policy, the care home legislation may make it harder for employers to argue vaccination is essential, because the unvaccinated employee can argue that the government has not made it mandatory in that sector.
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 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. 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 still not entirely clear. Even though high proportions of the population are now vaccinated, all protective workplace behaviours, such as maintaining a safe distance, limiting social or physical contact where possible, wearing face-coverings, ventilating office spaces with fresh air, and regular hand hygiene, and premises cleaning are helpful if continued after vaccination. This includes testing where it is being used as part of an employer’s response.
Q: Do we need to give workers paid time off to go for a test?
Employers should give employees time off to go for a test. Whether employees should be paid for time off to go for a test is not addressed in the guidance. Generally, there is no statutory right to paid time off to attend medical appointments. However sometimes there is a contractual right to time off.
The government and the NHS are advising people to self-isolate in a number of situations, including waiting for a test result, being in the same household as someone with symptoms, or being contacted by the Test and Trace service. Therefore, if an employee has reason to believe they have been exposed to the virus the employer should send them home anyway to protect the workplace and comply with their health and safety duties towards other staff and customers.
The sensible approach seems to be to allow the time off and to pay for this time or to trigger the start of SSP if possible. SSP will be available for self-isolation days waiting for a test result.
Q: Do we have to offer workplace testing?
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 has encouraged employers to regularly test their staff and is attempting to raise awareness and encourage more businesses to test.
Testing will not enable employers to avoid following the overall national and regional measures though, so 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.
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.
The main forms of test are:
- Lateral flow devices (LFDs) are one of the tests being used to help detect the presence of COVID-19 from a nose and throat swab sample. 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 new variants of the virus. There will be some false results with LFD tests. If a LFD test result is positive or anyone in the household tests positive, everyone in the household must self-isolate immediately and get a PCR test to confirm the result.
- Polymerase chain reaction (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.
- Loop mediated isothermal amplification (LAMP) tests provide results in about 90 minutes, but trained staff are required to operate the testing.
Antibody 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 Northern Ireland. 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.
Differences between devolved nations
Employers of any size who registered by 12 April 2021 could offer free rapid coronavirus tests for asymptomatic staff to take at home under the extension of a government scheme. This scheme has now ended.
Currently, the options are to:
- buy your own tests and set up your own workplace testing
- pay an approved provider to provide tests or run a test site for you (see below for information on private providers).
Routine testing is already available for people with no symptoms in high-risk workplaces, and other certain settings, including schools and communities where COVID-19 rates remain high. Free COVID-19 testing kits are available to all individuals in Scotland even those without symptoms. The kits can be collected without an appointment from local walk-in or drive-through test sites, pharmacies or by ordering online.
If the lateral flow test is positive, then people must self-isolate and order a PCR test to confirm the result.
Special guidance for the Scottish islands says anyone without COVID-19 symptoms should test themselves three days before travel to an island and the second on the day of departure.
Free lateral flow tests are available for those who cannot work from home. They are also used for regular testing of NHS and social care staff, and in universities, schools, care homes and other workplaces.
Further information on the rapid workplace testing scheme is available from the government website.
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.
Employers must consider whether to test as part of their risk assessments, whether it’s a one-off testing programme when the workplace reopens or 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. The FAQ below has information on employee agreement.
Time off for testing
With LFD tests being widely available, 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 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.
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 relate to existing legal obligations, including health and safety, general employment law and data protection. For other practical aspects see our FAQ above.
AgreementEmployers 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 confidentialityTest 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?
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 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 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 - which justifies 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 continues to be 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 circumstances where 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.
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 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.
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 the employee could return to work immediately rather than having to self-isolate. In this circumstance, if an employee refused 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 requirement.
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 that 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 to discipline 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, 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.
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 its website, including FAQs on data collection relating to COVID-19.
Q: How does coronavirus testing for employees affect sick pay?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.
Eligibility for coronavirus testing
Regular rapid-result coronavirus testing is increasingly available to individuals, even if they are asymptomatic. Everyone in England can access free LFD tests online or via testing sites and pharmacies. The government scheme to offer free testing for workplaces has now ended but employers can choose to buy tests and set up their own workplace testing or pay an approved provider to provide tests or run a test site for them (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 go to a venue to obtain testing or obtain 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. Whilst restrictions have now lifted and a return to the workplace is possible, government guidance encourages a gradual return. Employers should keep checking the government website for the latest information.
Deciding to test
Employers can decide if there is any merit in temperature testing especially with the availability of LFD and other forms 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 their Coronavirus risk assessments.
Voluntary temperature testing
For businesses that decide to test, the legal position concerning taking employees’ temperatures 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 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, provide 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 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 them of 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, this 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.
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
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