The NFU said that in addition to the PCR testing by the NHS and community-wide Lateral Flow Device (LFD) testing operated by local authorities, testing can also take place within the workplace.
Some employers will make LFD testing available to their workers or many will encourage them to make use of the widely available home testing kits.
Employers who do provide workplace testing should follow the latest guidance. If you are contemplating arranging your own testing for your employees, whether they have symptoms or not, you are strongly advised to read and follow all of the published guidance.
The NFU said the important point to remember about testing is that it will only identify whether the individual has COVID-19 at the time the test was taken. It will not confirm whether they have had COVID-19 already and are now recovered, or whether they have any antibodies or immunity.
Can I insist my workers are tested and share their test results?
Employers have no statutory powers to insist that a test is taken in any circumstances, including where a worker has symptoms. In these cases, the workers should be encouraged to follow government guidance to have a test and seek further advice from NHS 111 online.
Can I discipline my workers for refusing to take a test or share their test results?
Employees may only be disciplined where it is reasonable to do so. This will entail proper investigation as to their reasons for refusal whilst ensuring there is no discrimination on the basis of any protected characteristic such as race, religious belief, age or disability.
Disciplinary action should normally be a last resort and where all other options have been genuinely and fully considered.
The NFU said: “We are in unchartered territory and at this stage it is unknown how Employment Tribunals will interpret cases. It is, therefore, important that you contact our Specialist Advice Team at CallFirst for advice on this approach before taking any action.”
Do I need to consider any data protection issues if I carry out any workplace testing?
If a worker shares their test results with their employer, this is data relating to their health and would constitute special category data under General Data Protection Regulation (GDPR). This applies to any results from any type of COVID-19 test. This type of data is personal data that needs more protection because it is sensitive.
What should I do if a worker tests positive for COVID-19?
For information on what to do if a worker tests positive after any type of COVID-19 test and how this may affect the rest of the workplace, please see Coronavirus: Advice for employers from the NFU’s Specialist Advice Team.
Can I insist a worker receives the vaccine?
As with testing, most employers cannot physically force a worker to have the vaccine or show them proof of vaccination.
Employers can strongly encourage their workers to get fully vaccinated and this can be done as part of the steps an employer should take towards managing the workplace risks as part of their obligations under the Health and Safety at Work Act 1974.
Employers can help by allowing reasonable time off to be vaccinated. There is no obligation to allow for this to be paid time, but it may help encourage workers to accept the offer of a vaccination.
