Should an employer insist on employee COVID 19 testing?
There seems to be an increase in the number of employers, who remain operational, during the current level 5 lockdown; not only requesting, but insisting that employees consent to take a test for COVID 19 and, return a negative result before attending the workplace. While this is might seem reasonable request; the big question is; does the employer have the right to insist that employees submit to the test?
While the HSE has launched, Government supported, testing schedules in the healthcare and food production sectors; there is no government regulation allowing for mandatory testing of employees. It is probable that most employees would cooperate if asked to undergo a COVID test but what if an employee refuses? Does the employer have the right to insist the employee take the test? The short answer is, no.
If an employee refuses to take the test, an employer needs to consider the reasonableness of the request, in relation to the need to meet any health and safety requirements and the rights of the employee in relation to their person. There might also be GDPR implications regarding accessing, storing and sharing the information. So what actions have employers taken? And what are the risks?
In my experience employers have chosen;
Disciplinary Action: Even in these extraordinary times, the decision to evoke the Company Disciplinary policy and issue a disciplinary sanction might be difficult to defend, if the employee was to challenge the decision.
Suspension (without pay): To suspend an employee, at any time is a major decision, it is never advisable to suspend without pay. In this scenario an employee might bring a case to the WRC, under Payment of Wages legislation, claiming the employer had made an unlawful deduction form his/her wages.
There is also the risk that, in either of the above scenarios, the employee would resign and bring a claim of Constructive Dismissal against the employer.
An employer seeking to implement mandatory testing should consider, is there a justifiable need or requirement to do so and seek advice before taking any punitive action to address the situation.