Legal risks of Covid-19 testing in the workplace

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Photo: Dusan Petkovic / Shutterstock

Many employers are content on their staff relying on the coronavirus testing service provided by the NHS but, for some, private testing shortens the time it takes to receive results and reduces the risk of infection. Cliodhna McDonough and George Orman examine the legal considerations for employers wishing to introduce workplace Covid-19 testing.

For certain businesses, it is impractical or even impossible, for staff to work from home. Where this is the case, there is an earnestness to ensure that their work environment is as Covid-19 secure as possible, to help make employees feel safe to come back to the physical workplace. One of the ways in doing this is to implement a Covid-19 testing programme.

While the advice from government is for employees to work from home if possible, some employers are considering workplace testing. However, if that testing is not compliant, they could end up causing more issues for themselves.

Bringing in Covid-19 testing programmes tends to require specialist expertise – for example nurses or doctors – which, naturally, for most companies that is not something that can be done in-house’.

It is, therefore, often necessary to use the services of an external provider who will deal with the testing process. However, doing so raises not only questions of a regulatory nature (about the test itself) but also employment law considerations.

Employers’ duty

In particular, under the Health and Safety at Work Act 1974, employers have a duty to protect the health and safety of others affected by their business, which will apply to contractors and external service providers.

Therefore a company that wants to test its own employees using an external provider will have to consider how best to protect the health and safety of not just its own employees, but also those of the external services provider. With the current pandemic there is, beyond the usual risk, the additional risk of individuals contracting Covid-19.

While there will usually be a service agreement or other form of contract in place for the use of contractors, it is important to remember that the Unfair Contract Terms Act 1977 prohibits the waiver of personal injury claims including those relating to death or arising from disease (which would include Covid-19).

Accordingly a waiver of liability in respect of Covid-19 would very likely be unenforceable. It is of course possible to include a provision which stipulates that the company providing the services shall safeguard the health and safety of their employees, however there will still be a joint responsibility where those individuals are undertaking work at another company’s premises, such as with the implementation of an onsite employee testing programme.

HR, facilities and operations teams need to collaborate if they are seeking to use the services of an external provider who will be operating on-site. The best way of mitigating the health and safety risk is to spell out contractually what the service provider / contractor will do to ameliorate the risk to their own employees. For instance, in respect of a provider implementing a testing programme, that could include providing them with Covid-19 specific training, suitable personal protective equipment and cleaning facilities.

There is no one-size-fits-all for such contractual provisions. We would always recommend that a company looking to utilise the services of an external provider for Covid-19 testing, seeks legal advice on the drafting at an early stage in negotiations, so there is the utmost clarity on each party’s responsibility and a process for managing potentially sensitive information about employees.