Can I make my staff share their Covid-19 test results?
Testing for Covid-19 remains an important part of the government’s strategy to control the spread of the virus. Testing is linked with the current isolation rules, and the extent of an person’s ability to work, travel and interact with others is dictated by result of a test.
Increasing numbers of businesses are now implementing their own internal Covid-19 testing programmes as a means to protect the health of their workforce and to benefit operations, but businesses that do not have internal testing programmes instead must rely on their employees following the correct protocols when it comes to Covid-19 testing – and most importantly – being upfront and honest about the result they receive.
No clear yes or no
While being upfront and honest is fine in principle, when it comes to the question of whether it is possible to place employees under a requirement to disclose their test results to their employer, this approach means there is no clear ‘yes’ or ‘no’ answer.
If employers want to make it a requirement that employees disclose their test results, they will need to consider things on a case-by-case basis. That said, employers and employees alike have health and safety obligations, and employees are obliged to take reasonable care for their health and safety and that of anyone who may be affected by their acts or omissions while at work. They must also co-operate with their employer so far as is necessary to enable compliance with any statutory duty or requirement relating to health and safety.
Based on this, there is a strong argument that if a business has conducted a Covid-19 risk assessment the business is perfectly within its rights to place employees under an obligation to share the result and timing of their Covid-19 test results, if it can show that disclosure is a necessary and proportionate measure.Businesses who do want to require employees to disclose their test results must communicate their intention to do so, and ideally this should be communicated by updating to their internal disciplinary and health and safety policies. In theory, employers could even introduce a new contractual requirement, but this would need consultation with staff and may be difficult to justify in terms of a blanket approach.
A reasonable management instruction
In addition to arguing that a refusal could constitute a breach of health and safety procedure (again- provided the procedure has been properly communicated), an employer could attempt to argue that a request for an employee to provide confirmation of any Covid-19 test results is a reasonable management instruction. This would be on the basis that it is an instruction intended to protect health and safety , however, the employer must consider whether such a request is lawful or necessary in the circumstances, and we would always suggest that advice is taken on this point.
Any test results that employees do disclose would always need to be dealt with in line with GDPR. The data protection considerations are outside the scope of this article, but please do contact a member of the advisory team if you would like to discuss this in detail.
In summary , employers can require employees to share Covid-19 test results and the details of when they were received, but only if the requirement for them to do so:
- Forms part of a Covid-19 related risk assessment
- Is properly communicated to staff
- Is reasonable based on the facts of each individual case
Author: Charlotte Geesin LL.B (Hons) LLM, Head of Employment Law & Business Immigration at Howarths
