Reopening – Lateral Flow Tests Your Rights as Employee & Employer

In Covid-19, Featured

The government is offering every company in England free Covid lateral flow tests, but once businesses have the tests what is the law when it comes to administering them.

First things first, if you own a company in England and have not yet applied for the free lateral flow tests offered by the government there is still time. Originally, they were only available certain sized companies, this has now been scrapped and companies of any size can apply. The deadline for applying is April 12th however the government are advising companies to sign up by the end of March.

It does take a bit of time from registering to receiving and you can register here,  it takes about 2 mins, you will need your Companies House number and access to your work email (so you can do the confirmation click thing). From there they will contact you within 4 days to confirm.

In Scotland they have recently announced routine testing for high-risk workplaces but not yet hospitality. In Wales an announcement later this week about reopening is expected to include some news on this area. Northern Ireland are using their testing ability in a staggered approach, hospitality is not currently on the list.

If you are an employee there is no way to search to see if your employer has applied so you will have to ask them directly.

What are lateral flow tests?

They are coronavirus tests that can be self-administered with a quick turn around for the results. Whilst they are not considered to be as accurate as the NHS administered PCR tests they are still useful.

When coronavirus testing started there were all sorts of videos doing the rounds about how horrific it was to take the test. This has changed and the lateral flow tests are a lot less intrusive. They are being taken by kids at school so should be no problem for adults but here is a video explaining how it is done if anyone is still worried (besides bartenders and putting things up noses is usually not an issue).

The test takes 30 minutes to give a result and it is suggested that staff be tested at least twice a week.

It is also important to note that these lateral flow tests are only for people showing no symptoms. Anyone experiencing symptoms should contact the NHS and not come into work for a test. The lateral flow tests do not take precedent over other advice, if someone in your household has tested positive, or you have been told to isolate by track and trace, then even a negative lateral flow test is not a reason to defy these rules.

Can employees be forced to take the tests at work?

The short answer is no. There is no law that states staff must be tested or that employers can force their staff to take the test. Equally employers don’t legally have to offer them.  Employers could take the decision to bring in compulsory testing as part of their workplace policy, but ACAS advise getting legal advice before doing so.

Whilst it seems like a no-brainer that people will be wanting to get tested for free in the workplace it isn’t that simple. The biggest issue is what happens if there is a positive result?

That person will have to self-isolate immediately and contact the NHS for a PCR test, depending on the result of this they will have to self-isolate, at the very least it will be a couple of days off work whilst they wait for the result. With the furlough scheme only covering up to 80% of wages (until end of June then decreasing until it finishes end of September) and this not including any tips, staff will be reluctant to want to take anymore time off work.

On the flip side employers may not want to offer the free tests with it potentially leading to a staff shortage if a series of positive tests are returned and potential venue closure as a result.

ACAS have put together a page of advice which includes this checklist if an employer wants to start the testing procedure which should be discussed with employees:

  • how testing would be carried out
  • how staff would get their test results
  • the process to follow if someone tests positive for coronavirus
  • pay if someone needs to self-isolate but cannot work from home
  • how someone’s absence would be recorded if they need to take time off work
  • how testing data will be used, stored and deleted, in line with data protection law (UK GDPR)

Simply put it is up to the employer and the individual employees whether the testing should take place. No-one has the right to force anyone to take or provide tests.

It is of course the ‘right’ thing to have everyone working in hospitality and in contact with customers tested, for the safety of the staff and customers, and also to help prevent another wave breaking out. However, after the year that hospitality have suffered it will not be such a simple decision for some.

We would say if your venue does decide to test all employees twice a week, make a song and dance about it. Customers will be looking for reassurance that hospitality is safe after all the misinformation that our government have been spreading and this is a great example of that.

This article is part of a series dedicated to reopening of hospitality with tips, advice and important information that we will be publishing in the coming weeks so keep an eye out for more. If there is an area that you as an employer or employee want us to cover please email simon@barlifeuk.com

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