It has been widely reported that COVID-19 is on the increase, and concerns have been raised about how employers will be affected. Although the increased number of cases cannot be dismissed, the government and medical authorities have not issued any mandatory directives on what employees - and their employers, are expected to do. With this in mind, what can employers do if members of their workforce test positive?
Current Governmental and Medical Advice
Firstly, there is no current requirement to be tested for COVID-19. Secondly, the free lateral flow tests are no longer available - except under a few specific exemptions. Therefore, the public/employee will have to buy a test kit from the local pharmacist at their own expense. If an employer requires staff to be tested, they may find this difficult to enforce. They will also need to pay for the test kit themselves - unless there is a contractual clause or policy in place that states otherwise.
Thirdly, if an employee tests positive, then the previous rules on mandatory isolation do not apply, and positive test results are no longer required to be logged online. Therefore, employees who test positive are not obliged to notify the NHS or their employer, and are entitled to come to work.
What Can Employers Do?
Under the current guidelines, it will be very difficult for an employer to compel staff to take lateral flow tests or force them to isolate – even if they pay for the tests. The vaccination programme has substantially reduced the threat from COVID-19. The imposition of restrictions above and beyond current medical/governmental advice would be unjustified.
However, if the employer has vulnerable employees – due to their age, medical condition, or various other factors, they may be able to justify mandatory testing on health and safety grounds. This is also true within the health and social care sectors, or when the service user has imposed such conditions. In these circumstances, the employer will be required to pay for the test kits. Where these factors do not apply, then – at present, you cannot force an employee to be tested.
It is always a good idea to consult staff and keep them involved in all matters of health and safety. As such, it is crucial you agree a plan for voluntary testing and re-assure staff that they are not at risk of being exposed to COVID-19 in the workplace.
Current Advice
The NHS currently advise that – where a test is positive AND accompanied by a high temperature or not feeling well enough to work, they should “try to stay at home and avoid contact with others for five days.” Provided they feel better and/or do not have a temperature, they can return to work. It should be noted that this is simply general advice and guidance, and NOT a mandatory requirement.
For further information, you are advised to call the HR Helpline on 01455 852 028 where a team of experts can advise you on your rights, duties, and HR obligations as an employer.
