Covid testing and managing workplace health and safety

Lateral flow testing (LFT) will form a major part of the government's strategy to re-open the economy for business and schools as we develop mechanisms to live with Covid19. Employers need to consider the implications for their own businesses.

Direction of travel

The government has been providing free test kits and piloting schemes for workplace testing with larger employers with a significant number of employees who cannot work from home. There has recently been a step change in the approach when all employers were offered the opportunity to sign up for workplace testing. Firms will have to express their interest by the end of March with kits being distributed free of charge until the end of June. Smaller employers are also advised by the government to encourage employees to take up community LFT services offered by local councils.

The scheme is voluntary, but it is a timely prompt as we embark on the government's Road Map for employers to review their existing risk assessments to consider whether this is a reasonably practicable additional mitigation. Although not mandated, 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.

We anticipate that the government will reinforce this by updating their "Working safely during Coronavirus" guidance to include this as an additional mitigation based on the outcomes of the pilot schemes. Anecdotally, the pilots are reported to have improved employee confidence and wellbeing although there has been some employee resistance on personal choice and privacy grounds. However, employees and customers may come to expect it as part of a responsible businesses Covid-secure arrangements.

The difficulties of workplace testing

Workplace testing is not however straightforward. This can be seen form the fact that the original slide deck guidance for employers in the pilot scheme was 200+ pages long. In addition to which there are sample privacy notices and template employee communications. Testing involves setting up separate areas and management systems and the cost of additional employees to manage it.

There are practical issues for smaller employees of how to encourage or require attendance at community test centres which is particularly important as it is an offence for an employer to allow an employee who has tested positive for Covid 19 to attend at their place of work without first self-isolating.

What action should I take?

Our advice is that employers need to at least consider the possibility of LFT's as part of its overall risk mitigations and make an informed decision, recorded in a suitably detailed risk assessment. Where a decision is made to introduce testing, the assessment should also set out how to communicate 'next steps' where an employee tests positive and how the tests themselves are going to be administered.

The rollout of mass testing of employees is going to be an increasingly common 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 we can help you with your risk assessment, managing your employees' rights or data privacy issues arising from workplace testing please do get in touch for a discussion.

More information

For a discussion of the issues relating to testing and vaccination and your employee please access our on-demand webinar or get in touch with our expert team:

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