Following the DfE update to the Actions for schools during the coronavirus outbreak guidance (11:01am, 14 December 2021) we have considered the implications of 7 day testing and put together the following FAQ’s:-
Can an employer compel an employee to take daily LFD tests?
If an employee has been notified that they are a contact of someone with COVID-19, we consider that it is likely to be reasonable to require that employee to take a COVID-19 test, where the purpose is to protect the health and safety of the workforce. In the light of the updated guidance, where the employee is identified as a contact of a COVID-19 case, we also consider that it is likely to be reasonable to require the employee to take daily LFD tests in accordance with that guidance (again, where the purpose is to protect the health and safety of the workforce).
However, the employer should consider any reasons provided by the employee for their refusal and also whether the risk posed by COVID-19 (and, in particular, the Omicron variant) can be managed through other means such as social distancing. Where an employee has to work in close proximity to others, it is likely to be more difficult to manage the risk other than by daily testing. As a result, any requirement to take daily LFD tests is more likely to be reasonable in these circumstances. Keep in mind, however, that the current guidance is for employees to work from home where possible.
Any requirement to take daily LFD tests should be applied consistently and in accordance with the guidance, to avoid discrimination claims.
What is the position with an employee who is unvaccinated or not fully vaccinated?
An unvaccinated or not fully vaccinated employee, who is a close contact of a person with Covid, must self-isolate. This period of self-isolation is deemed sickness absence as it is a requirement, therefore, likely to be paid in full.
Can an employer discipline employees who refuse to take daily LFD tests?
This will depend on whether any requirement to take daily LFD tests amounts to a reasonable management instruction and is necessary and proportionate in the circumstances. The fact that the current guidance “strongly advises” contacts to take daily LFD tests adds weight to the argument that an instruction to take daily LFD tests for seven days would be reasonable. However, if there are legitimate reasons for an employee’s refusal, taking disciplinary action could be risky. An employer should keep in mind that some individuals are finding it difficult to obtain LFD tests given the spike in demand.
Can an employee be sent home without pay for refusing to take daily LFD tests if they have been identified as a contact of a COVID-19 case?
The issue of pay is problematic. An employee is likely to argue that they are willing and able to work, meaning that they should be paid in full. The employer may argue that they are unable to work because, without undertaking daily tests, they pose a health and safety risk to the workforce and are acting contrary to current guidance.
We would favour this latter approach. However, we are unaware of any specific guidance or authority on this issue. As detailed above, an employer should consider whether it is reasonable to request daily testing in the circumstances. It should also consider any alternatives to suspending without pay. Suspending an employee without pay or failing to provide work could be a breach of the implied terms of the employment contract, unless there is express provision in the employment contract allowing it).
If an employee has symptoms this will be sickness absence.
Can an employee continue to come to work if they refuse to test for 7 days?
We have spoken to Jeanne Fairbrother at Jeanne Fairbrother Associates, who provides specialist H&S advice to schools. We both take the view if an employee refuses to take lateral flow test they can continue to come to work if this is supported by the risk assessment. There should be an individual risk assessment and additional control measures put in place. For example:-
- Completion of a Covid questionnaire at the start of each day, to confirm the employee has no symptoms.
- Adhere to social distancing.
- Not to attend meetings.
- Move around school wearing a face covering and avoid staffrooms etc.
- Enhanced hand and respiratory hygiene.
- Ensure areas are well-ventilated.
- Temperature tests.
Jeanne has provided an up to date risk assessment, whole school and individual, together with a self-declaration that she is happy to share. Here are the links:-
What is the latest Public Health England advice?
The emphasis from PHE appears to be slightly different. One of our clients asked PHE whether people who have been positive in the last 90 days need to do daily testing. The response was ‘if you are identified as a contact (but have had PCR in last 90 days) then, yes, they are to do LFD’s for 7 days to avoid isolation.’
The clear indication here is that a refusal to test could lead to self-isolation. There is nothing in any guidance we have seen that would support that position.
It may be this is a relatively minor problem and very few, if any, individuals will refuse to carry out LFD tests. The situation applies to individuals who have already been fully vaccinated, so it is unlikely that a person who has agreed to be fully vaccinated then refuses to participate in testing.
The general coronavirus guidance starts here:-