Covid-19 testing: Health and Safety implications of employee testing

Workplace and community-based testing will form a major part of the strategy in responding to the pandemic.

It has been an offence since September for an employer to allow an employee who has tested positive for Covid 19 to attend at their place of work without having observed the required period of isolation. 

So, employers will already have in place systems to monitor for employee infections and ensure that the risk posed to employees and others affected by their businesses is suitably reduced; to a level that is as low as reasonably practicable.

But what about the future? 

Is there a need to review risk assessments and plans for the safe return to work in 2021 in order to attain / retain 'Covid secure' status?

How should a business approach the mitigation of risk in 2021 given developments in the last few weeks and months?

In our view the answers to these questions are:

1. Absolutely: review your risk assessments considering everything we know
2. The pressing need is to consider workplace and community-based testing.

The Government announced over the weekend that lateral flow tests will be provided free of charge to all employers, including those with fewer than 50 employees.  The deadline for expressing interest is the end of March, with testing kits being provided free of charge until the end of June 2021.

This is not an entirely free process however since the UK Government will not also be providing the staff to administer the tests and then record the results.

NHS Test and Trace has previously explained that the approach to workplace testing largely depends on the number of employees planned to be working on site rather than at home, instead of the overall number of employees. 

• If the number of such employees is greater than 50, the advice is to arrange on-site workplace testing
• If the number is less than 50, the advice is to consider recommending community-based testing.

Where an employer has fewer than 50 employees on site they are encouraged to advise employees to book their own lateral flow test at one of the community testing facilities operated by local authorities; the nearest location can be found via a postcode checker service on the GOV.UK website.

The plan is that this process will only take 30 minutes from beginning until receiving the test result so that an employee may call into their local testing facility on their way to work and, in the event of a negative test, continue about their working day.

It seems that rather than calling into to a coffee shop and securing a cappuccino or a latte under the 'old normal,' the expectation is that we will now call into a community testing centre and secure a lateral flow test, before continuing onto work and going about our working day.  How times change.

Foot Anstey's Employment Team has prepared a webinar considering the Employment Law issues that arise from this which you can access here.

Health and Safety

Many businesses are likely to conclude that workplace testing sounds sensible.  But are there any health and safety related implications?

Furthermore, what might an employer factor in when planning how to respond to such widespread testing being made available?

In our view the answers are again:

1. Absolutely: review your risk assessments considering everything we know
2. The pressing need is to consider workplace and community-based testing.

The key principle here is the need to consider workplace testing in some form.

Employers will be aware of the duty to ensure the health and safety of employees and others affected by an undertaking under the long-established Health & Safety at Work Act (HSWA) 1974. 

This duty will have informed the detailed and dynamic assessment of risk to date.  There is no legal duty to arrange for or conduct workplace testing per se.  At least not yet.

The UK Government acknowledges that the system of workplace and community testing for asymptomatic employees is voluntary.  However, we do detect a change in the mood music, the clearest evidence for which being the Government's announcement over the weekend that all businesses will be able to secure on site workplace testing.

Workplace testing (in some form) is now part and parcel of commercial life in 2021.

If it is reasonably practicable then a regulator is likely to argue that should be implemented to fulfil employers existing duties to ensure the health and safety of employees, customers and members of the public affected by their business.

The need for overall assessments of workplace risk

But such testing will not necessarily work effectively for all businesses.  There may be many reasons why a business concludes that mass testing of employees is not a practical way of reducing risk in their business and so ought not to form part of their overall approach.

The point is the employer needs to at least consider all relevant risk mitigations and make an informed decision, recorded in a suitably detailed risk assessment.

This process must be part of an overall assessment of workplace risk.  The time for such an assessment is approaching given the direction of travel towards unlocking and the return to 'normal.'

We would advise all businesses to consider whether it is feasible for their business to conduct workplace testing (in either form described above) and to consider (and record) what mitigations are going to be in place going forward, so that they are able to withstand regulatory scrutiny in the coming months or even years.

This paves the way for all important 'Covid secure status.'

Risk mitigation measures relating to Covid transmission are going to be needed for a while yet; indeed the "hands, face, space" message is expected to continue even after restrictions are lifted in the Summer.

In summary

In our view, now is the time to begin refreshing and revising the risk mitigation measures based on all the material we now have at our disposal when it comes to identifying what those mitigation measures might be.

The rollout of mass testing of employees is one such mitigation; it may not work effectively for all employees, but it will be important for all businesses to be able to explain their thinking one way or the other as part of an holistic review of risk in their business.

If you would like to learn more about the health and safety implications of employee testing, get in touch with our experts today to discuss the potential impact on your business and the best route forwards.