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Do vaccinated employees need to take a PCR test following close contact with a positive COVID-19 case?

While the legal requirement for fully-vaccinated people to self-isolate was revoked in an attempt to put an end to the so-called “pingdemic”, people are strongly advised to get a PCR test to ensure they are not COVID positive. Here’s what employers need to know.

Updated self-isolation rules for vaccinated employees

Fully-vaccinated people no longer have to self-isolate if they’ve been in close contact with a positive COVID-19 case. However, even if double-jabbed, employees should get a PCR test as soon as possible.

If the test comes back negative and they remain asymptomatic, they don’t need to self-isolate. If they test positive or have symptoms, they must self-isolate for at least 10 days. They are not required to self-isolate while waiting for the test result.

Rules for vaccinated health and social care staff are different. The conditions provide that in order for them to enter the workplace:

  • They shouldn’t have any COVID-19 symptoms.
  • They should immediately arrange a PCR test, either via workplace arrangements or the NHS Test and Trace service. The PCR test result should be negative before any return to work.
  • Following a negative PCR result, they should undertake an LFD antigen test every day for 10 days following their last contact with the positive case.
  • If they have a SARS-CoV-2 infection in the past 90 days, they shouldn’t have a PCR test but instead undertake daily LFD antigen tests. On work days, the LFD antigen test should be taken before starting work and the result should be negative.
  • They should comply with all relevant infection control precautions and PPE should be worn properly throughout the day. If working with patients or residents who are highly vulnerable to COVID-19, then a risk assessment should be undertaken.

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As an employer, can I require that an employee be tested?

If there’s no contractual clause to be tested, you will have to rely on the implied duty to obey an employer’s reasonable instructions and your obligations under the Health and Safety at Work etc Act 1974 to ensure the health, safety and welfare of staff and others.

An employee’s refusal to comply could be treated as misconduct for failing to follow a reasonable management request, as well as failing to comply with their own health and safety obligations. Accordingly, you could argue that it’s a reasonable management instruction to be tested, although that will be very dependent on the circumstances.

A disciplinary process may be started where an employee unreasonably refuses to take a COVID-19 test where such a request is reasonable. However, much depends on the overall context of each individual case. The risk of disciplining an employee should take into account the nature of the workplace, what the employer’s own risk assessment states in respect of testing being necessary, the reasons for the refusal, any local outbreaks, whether there are particularly vulnerable colleagues, the extent of risk and whether it can be mitigated. In effect, your need for the employee to take the test has to be balanced against the reason for the employee’s refusal.

If the employee has symptoms, you may be justified in taking disciplinary action to protect the health and safety of others. However, the reasonableness of a refusal is more complicated if the employee has no symptoms. You may be able to reasonably request that they take the test for COVID-related health and safety reasons where those concerns can’t reasonably be addressed through other methods, such as social distancing. For example, where someone works in a care home, the employer’s request is likely to be considered reasonable.

Another issue to consider is whether Article 8 of the European Convention of Human Rights, which protects the right to private and family life, is triggered. The right for an individual to choose whether to undergo a test might fall within this right. It is possible to interfere with this right “in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”. Therefore, if there is real need to protect health or economic wellbeing, that may be capable of overriding the Article 8 right to private life. It requires a careful balance between the rights of the individual and employer (which could also include the service users of the employer).

Further guidance regarding workplace testing can be found on the Acas website.

Reasons for refusing

If an employee refuses to be tested, before taking any formal action, you should discuss their reason(s) for refusing with them. Take care to fully explain why you need them to take the test and reassure them that the result will, so far as possible, be kept confidential and that data protection requirements will be complied with.

If the employee doesn’t give a valid reason for refusing to take the test, e.g. they don’t raise any discriminatory reasons for refusing, and the request itself is reasonable, then you may need to consider formal disciplinary action. This may result in their dismissal.

Again, the extent to which a refusal is valid depends on the circumstances of the particular employee and employer, the reasonableness of the instruction itself, and the extent to which the risk of COVID-19 can be managed through other measures. If alternatives such as working from home are available, then this makes it harder to justify mandatory testing. The employee may reasonably argue that testing isn’t necessary or proportionate because the health and safety obligations can be met in other ways. In any event, before dismissing an employee in these circumstances, alternatives to dismissal must be considered.

Where the employee does provide a valid reason for not taking a test, such as when Occupational Health or a GP confirms they have a health condition that prevents them taking a test, you should explore whether they could still continue working irrespective of them not being tested, whether other measures could be put in place, for example working from home, or whether they could be redeployed to another role where COVID-related health and safety concerns can otherwise be addressed.

It’s important to remember that you must not physically force an employee to undergo a test against their will – this will amount to assault.

Avoiding discrimination

Where someone cannot be tested for a protected reason, for example a disability, you also need to consider your responsibilities under the Equality Act 2010.  

You are under a duty not to discriminate against a worker because of their protected characteristic. If the reason for not being vaccinated is disability-related, there are additional obligations to make reasonable adjustments to the workplace in order to accommodate them, which will include considering whether alternative safety measures will be adequate or redeployment to another role if not. All alternatives must be considered fully before considering dismissal.

It’s unlikely, in our view, that an individual would be able to say that they can’t be tested for a protected reason, but in any event, if a worker does argue this, their concerns should be fully investigated, and advice sought before taking any formal action.

Data protection

Whenever the employer obtains information about an employee’s testing status, they will be processing special category personal data (formerly known as sensitive personal data). It will be important to comply with the Data Protection Act 2018 and the GDPR in this regard. See the ICO’s website for further details.

The bottom line

The bottom line is that if you ask an employee to take a test in circumstances where COVID-related health and safety concerns can be addressed through other methods and/or where the employee’s role doesn’t involve contact with those in a vulnerable group, then you’re unlikely to be able to make testing a mandatory requirement and take disciplinary action against an employee for refusing. That is, unless particular circumstances mean you could point to another valid reason to justify your testing request.

In all cases, it will be key to resolve the issue at the outset. This will likely be done through clear and transparent discussion with the employee, explaining the need for a test. Ultimately, you will have to decide if you’re prepared to risk disciplining or even dismissing an employee who refuses to be tested.

If in doubt, seek advice

Ellis Whittam is currently helping thousands of UK employers return to work safely, overcome workforce obstacles and meet their legal obligations so that they can get back to business. If you’re in need of straightforward, practical advice on the legalities of vaccination and testing or guidance on your post-lockdown risk control measures, our Employment Law and Health & Safety specialists are available now.

Call 0345 226 8393 or request your free consultation using the button below.

 

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