Whether or not COVID-19 testing can be made compulsory by employers (where employees are not showing any symptoms) will be down to the reasonableness of the request in the circumstances. Employers have a duty to protect the health and safety of their employees. One of the factors when assessing the reasonableness of the request could be to what extent COVID-19 cannot be managed in the workplace effectively with other measures (such as social distancing or remote working).
The Information Commissioner’s Office guidance states that, as long as there is a good reason for doing so, employers should be able to carry out health testing on employees as data protection law does not prevent employers from taking the necessary steps to keep their employees and the public safe during the pandemic. However, employers must ensure that they handle employees' personal data with care.
Where testing can be considered to be necessary and proportionate, an employer could seek to make testing a contractual obligation.
If any employee refuses to take the test, before any disciplinary action is taken against them, an employer must consider the individual circumstances and factors surrounding the refusal, as they may have a legitimate reason for the refusal. Any concerns employees may have around taking the test, may be able to be resolved if a conversation takes place with each individual and they can be reassured that their personal data will be handled securely for example.
Please note, all advice and opinion offered in this article are subject to change in line with the latest government advice.