Free lateral flow testing for the public ends on April 1. But what does this mean for employers and the workplace?
Official government guidance says to buy your own tests, set up a workplace testing site or pay an approved provider to do it for you. But many employers do not know whose responsibility this should be.
There are a lot of factors to weigh up when deciding if mandatory on site testing is right for your business.
As an employer, you have a duty of care for your employees under health, safety and welfare regulations. This means you must provide a safe working environment, free from illness, injury, or mental health problems.
The question employers must ask now is: would a health and safety measure be proportionate to the level of risk faced by employees?
The greater the risk, the more you can justify the expense to protect the safety and wellbeing of your workers.
Currently, one in three people with Covid-19 experience no symptoms, while ONS statistics show the infection rate at 1 in 25 people in England, 1 in 30 people in Wales, 1 in 13 in Ireland and 1 in 18 in Scotland.
Most people who experience serious symptoms are either elderly, immuno-compromised or unvaccinated people.
If any of your workers are in a vulnerable category and catch Covid, they are at a much higher risk of death or serious illness. It is reasonably practicable to do all you can as an employer to reduce the risk, but employees also need to take responsibility for managing their own risk.
Covid-19 is here to stay
There is nothing we can do to completely remove the risk, hence the new 'living with Covid' measures, but it is possible to mitigate the risk to the best of our ability.
I would recommend updating your internal health and safety policies and encouraging employees to pay for their own tests.
You can make this easier by setting up your own workplace testing site, which employees can use for a small fee. Alternatively, employers can pay an approved third-party to provide workplace testing or run a test site.
By scrapping free testing, the government has said that they no longer fall under the necessary duty of care. So the responsibility now falls to everyone individually, which means every employer must decide what they are comfortable with.
It is good practice to encourage workers to test when necessary – for example, if they are feeling unwell.
Following the scrapping of self-isolation rules in England, people have more of a right to choose what they do if they have a positive Covid-19 test or experience symptoms.
Changes to the statutory sick pay provision will bring Covid-related sickness in line with other illnesses, leaving employees to decide whether they are able to work or if they need to take sick time. Employers should set out their stance in a Covid policy to help clarify expectations.
Some things to consider when deciding whether to offer free testing in the workplace could include the size of your company, the industry you work in and whether you can afford to cover the cost of testing for your workforce.
If you work in an industry where employees are in close contact with others or hygiene is key, such as hospitality or care, then it would probably be a good idea for you to provide workplace testing and pay for the cost.
On the other hand, if most of your employees work from home or on their own, for example, as drivers, then there is little to no benefit to be gained.
You cannot be criticised for making free Covid tests an option, but you may find your employees do not use them, in which case you will have wasted your money.
At the end of the day, the decision is yours to make. Are you comfortable and able to provide Covid tests to your employees at no cost to them, do you require regular tests (dependant on sector industry), or will you leave the entire subject of testing down to your employees’ personal choice?
Some people feel strongly about regular testing, others cannot wait until they no longer need to take them.
If you feel you cannot afford the expense or that it is not necessary for your business, then there is probably no need for you to pay. Your Covid policy should reflect your stance on this, making it clear whether you require employees to take regular tests as well as who will be responsible for the cost and the business policy on what happens if an employee tests positive.
You may decide that you still want employees to stay at home when they test positive for Covid, but are not unwell, even where no legal requirement exists, to reduce the potential for transmission in your workplace. Employer instructions to stay at home are normally accompanied by full pay. Normal sick pay rules will apply when an employee tests positive and is too sick to work.
If you have done all you can, so far as reasonably practicable, in ensuring the health, safety and wellbeing of your staff, then you will be compliant with current legislation.
My best advice is to set everything out clearly in your Covid policy so there can be no misunderstandings.
Peter Done is managing director and founder of law firm Peninsula
