Covid testing in the workplace – what do employers and employees need to know?

Guidance by Moira Grassick, Managing Director of Peninsula

The spike in case numbers early this year led many Irish employers to consider the feasibility of introducing COVID-19 testing in the workplace. With community transmission levels remaining high, asking staff to take a COVID-19 test before entering the workplace is one measure employers can implement as part of their health and safety management systems. Certain businesses have reported that employees’ testing has allowed them to maintain operations and safely manage interactions with contractors.

Currently, there is no government guidance or legislation in place regulating the testing of employees, and workplace COVID-19 testing is, therefore, at the discretion of the employer. There is also no government subsidy or other form of financial support for workplace testing, and any employers who implement testing must arrange the tests at their own cost.

What can we do if an employee refuses to take a COVID test?

In the absence of a legal requirement for employees to take a test, no individual can lawfully be forced to take one, as such an action could be considered assault. Employees who have no symptoms should only be asked to take a test voluntarily.

Employees who have no symptoms and are not a close contact of a confirmed COVID-19 case may query the legal basis of being required to take a COVID-19 test before entering the workplace. In this scenario, the purpose of the test should be explained to the employee, and if the employee continues to refuse the test, employers need to tread very carefully to avoid employee relations issues.

An employer’s first instinct in this situation may be to go down a disciplinary route. However, they should again bear in mind that they should first demonstrate that taking a test before entering the workplace is a reasonable management instruction. They should also consider that employees may have personal reasons for not wanting to take a test. It is highly advisable to have a constructive discussion with the employee in question before deciding how to respond.

Instead of enforcement, it will likely be much more effective to outline to staff why these tests are necessary and encourage them to take one when offered. Staff should also be reminded that if they unreasonably refuse to get tested, it may be necessary to prevent them from being admitted into the workplace to protect their colleagues’ safety. If the alternative to testing employees is a reduction in work capacity, employees may be more inclined to volunteer for COVID-19 testing.

What happens if an employee tests positive?

The procedure for what should happen in this situation needs to be clearly outlined to employees before taking a test. If they test positive, they should not be permitted access to the workplace and instead sent home to self-isolate in line with current government guidelines.