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We held a virtual legal workshop with Gowling WLG on 2 March to help attendees navigate the myriad of legal risks associated with workplace testing and vaccinations. Our recent HR Groups raised this issue as a key challenge they currently face.

Here we summarise the key elements of the webinar and outline the aspects that employers should be alert to as they seek to minimise the risk of coronavirus transmission in the workplace.

The full webinar is now available on demand, to view at your convenience:

  • The legal implications and associated risks and considerations in managing Covid-19 testing in the workplace.
  • Workforce rights and vaccination including how to implement workforce vaccination programmes and how to minimise the risk of employment tribunal litigation.
  • This is a double-handed session from two experts who have been covering different Covid-19 issues in the past year.

The importance of context

Gowling WLG has been supporting organisations across various sectors to address workplace issues raised by the pandemic that are constantly evolving. As employers look to reopen more office spaces and strengthen the existing health and safety measures they have in place, employers will inevitably be grappling with questions around testing and vaccines.

Workplace testing

From those weighing up testing systems to those who want to check they are being legally compliant, employers should ask from the outset why they are wanting to test staff. The rapid result lateral flow tests have been subject to plenty of coverage around the limitations of this method. Private testing schemes are expensive, but many have invested significant sums to build their own private systems including John Lewis, Formula One, BAE Systems, Octopus Energy and Amazon.

Compelling justifications for employers using testing systems include:

  1. Health and safety – the desire to protect staff, clients, customers and service users.
  2. Business continuity – to reduce the risk of workplace outbreaks and workforce gaps.
  3. Reassurance – that working premises are as safe as possible for staff and clients.
  4. Contributing to public health efforts – keep in mind other protective measures you have in place and the accuracy of the test results.

These are all good starting points for rolling out testing, but employers need to interrogate their approach further. Is there a less privacy-intrusive way? Will the testing be voluntary or compulsory and what are the consequences of refusal? Have you considered those with disabilities? How will you consult with staff and Trade Unions?

Legal considerations

Data protection regulations under the General Data Protection Regulation (GDPR) may stop employers from collecting data at all, even on a voluntary basis. Information on whether someone has Covid-19 constitutes health data. It is unlawful to process unless there is:

  1. a lawful basis (defined as a Public task (public authorities) Article 6(1)(e);
  2. a Legitimate interest (Article s6(1)(f) – establishing whether processing is necessary and the intrusion on privacy justified); and
  3. Legal obligation (Article 6(1)(c)) – establishing a lawful basis to process personal data.

There is also the special category condition – defined by the ICO as employment to protect the health and safety of staff (Article 9(2)(b)) and public health (Article 9(2)(i)), which would cover employers trying to stem the spread (Article 9(2)(i)). You must have key documents in place showing that you meet these conditions or the ICO can issue enforcement measures if these are not satisfied.

The risks of introducing mandatory testing

1. Discrimination

Employers must offer reasonable adjustments for disabled employees, and explore alternatives to mandatory testing, unless other measures to make the workplace covid secure are not robust enough. For example, in a busy manufacturing environment, where the nature of the work means employees can’t work from home, there may be inevitable close contact in spite of social distancing measures. Employers may be more likely to have a lawful basis to carry out regular testing to identify asymptomatic cases.

2. Unfair dismissal

Those with over 2 years’ experience risk claiming this if they feel that the instruction to have a test is unreasonable. The employer should look at the contract, return to their risk assessment in introducing testing and consider whether it is fair in all the circumstances to dismiss. Dismissal should be reserved for the most extreme circumstances – disciplinary action is a high-risk strategy. This is why completely optional testing may ease employee relations.

The importance of consultations

“To manage employee relations and tricky conversations around workplace testing, consultations designed to listen to employees carefully are vital."

To manage employee relations and tricky conversations around workplace testing, consultations designed to listen to employees carefully are vital. Trade Union recognition agreements may require this and guidance from the Department for Health and Social Care strongly advises employers to consult on testing programmes. The consultation should cover the reason for setting up the programme; whether the programme is voluntary or mandatory; what happens if an employee refuses to participate or when employees receive a test result; and guide staff seeking advice on their rights. This is the opportunity for employees to discuss any concerns.

Consultation will outline the practicalities of the proposed process, such as whether testing will be in-house or outsourced and who will take the samples and read the results. Employers must also uphold their duty of confidentiality and follow Covid-secure protocols, such as holding the information for no longer than necessary and informing colleagues without disclosing the name of the individual. Read the full Information Commissioner’s Office guidance on testing and the government’s guide to workplace testing.

What type of test?

There is also the issue of which test is best. A robust system will be crucial, as if the test is not carried out by a healthcare professional, the results may be less accurate. Does this undermine the reason for doing testing? Plans will have to factor in extra training and support. Cost may also be a factor for those opting for the free lateral flow tests available until the end of March to those open during lockdown with over 50 employees.

Speed will also be a factor. If the plan is to test at the point of entry, it is unhelpful to wait for results. Specificity could lead to a number of false positives whilst sensitivity may lead to more false negatives and undermine catching the spread throughout the workplace. Do your research to justify the decision. With one-off tests which have low sensitivity rates, this may undermine the justification for testing. Ongoing analysis will be crucial to an employer’s compliance.

Making testing easy

“The government currently recommends employees having two to three tests per week in its asymptomatic testing model."

The impact on employees must also be considered. Self-administered rapid result tests could be administered in their own time but if the system requires the employee to turn up early, this could have discriminatory implications, e.g. if the employee has childcare responsibilities. Employers also have an obligation to pay employee’s time when they are on minimum wage or a low hourly rate. Making it as easy as possible to have the test administered will increase the uptake of tests. The government currently recommends employees having two to three tests per week in its asymptomatic testing model.

Can you vaccinate your workforce?

Vaccines are seen as the holy grail in the return to ‘normal’ pre-pandemic life. The rollout has been the fastest ever and data is starting to show the impact in protecting individuals and reducing transmissibility. It is easy to understand how ‘no jab, no job’ has become an intriguing soundbite as an employment policy.

Employer’s duty to protect and report

Organisations are covered by the Health and Safety at Work Act 1974, meaning they have a duty to protect staff and clientele so far as is reasonable. Under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (RIDDOR), Covid-19 is a reportable disease. Vaccinations are seen as a key tool in upholding that duty and context is absolutely crucial.

There may be certain groups of employees who will be at greater risk of catching Covid-19. For example, the government has prioritised Care homes given the elderly and vulnerable residents who will come into contact with healthcare professionals and agency staff. This high-risk environment will have a different assessment to a maintenance worker who may be going to different premises, but have less face-to-face contact with individuals. Different contexts will pose different risks that will need to be factored into assessments.

Addressing the vaccine hesitant

There will be a small group who are medically advised not to have the jab, but the majority of vulnerable individuals will be encouraged. Fake news is a major barrier to some, so employers should consider sharing medical guidance and information and putting them in touch with colleagues who have had the vaccine. Actively listen to their concerns can also go a long way. Unions are being supportive of helping employers encourage staff to get vaccinated – the NHS has an ‘Covid-19 Behaviour Change Unit’ dedicated to educating employees around why they should have the jab.

Risks of trying to mandate the vaccine

For existing employees, they may claim this policy change is indirect discrimination and they are substantially disadvantaged by that policy, for example younger people who are not able to get the vaccine as easily. Those with a disability may be advised not to have the vaccine or their impairment may make it difficult for them. As the vaccine is new, the data isn’t there yet to be definitive on whether those who are pregnant should have the jab – more evidence is needed. This may also affect those trying to conceive, and they would not want to disclose that. Employers should be prepared to navigate tricky conversations and respect those who do not wish to disclose the reasons behind their hesitancy.

Balancing beliefs with collective health and safety

Culture, religion and belief may deter individuals – even though all recognised religious leaders have publicly supported people of their faith having the vaccine. Fake news around microchipping and animal products being in the dose, those with philosophical beliefs and anti-vaxxers may all undermine vaccine uptake. This raises the ethical question of how to engage with people’s serious beliefs worthy of respect in democratic society. Again, this comes down to balancing employee concerns with the legitimate aims of an employer’s approach. In a global pandemic, given the high number of cases, hospitalisations and deaths, the employer can make the case for meeting the threshold of being legitimate. As to whether this is proportionate, context is critical. The impact on the individual is severe – it is an invasive procedure. The employer must show existing measures aren’t enough.

Constructive dismissal

New employees’ contracts may require vaccines to be received within a defined period in their contract. However, for existing employees, their terms and conditions would have to be renegotiated to make the vaccine mandatory. From a staff perspective, there is a duty to protect themselves and colleagues but if they feel it is unreasonable for management to request this, the employee might resign and claim constructive dismissal. The employer should avoid this – it damages not only that relationship, but wider employee morale.

Alternative options

“If staff refuse to have the vaccine, employers should ask themselves whether they can accommodate their requirements and mitigate the risk."

If staff refuse to have the vaccine, employers should ask themselves whether they can accommodate their requirements and mitigate the risk. Can the individual work from home or be moved into a different area of the business where there is less risk of transmission? In the worst-case scenario, they could be suspended on a short-term basis subject to review. Employers should continue to carefully monitor government guidance about protection for individuals and transmissibility. Disciplinary action should always be the last resort. Monitoring who has had the vaccine will be regulated by GDPR, so employers must make sure data processing is compliant.

Get in touch

It is clear that there are a plethora of legal, ethical and moral considerations facing employers who wish to introduce testing systems and enforce the vaccine programme throughout their workforce. For more information on your legal obligations in relation to policies around workplace testing and vaccination requirements, contact Gowling WLG. If we can help you navigate how to manage your workforce engagement during this period, call us today.

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