Following the re-opening of schools in England, asymptomatic testing for staff and pupils has been introduced for staff in primary schools, as well as staff and pupils in secondary schools and colleges. The government’s position is that regular testing will help identify more positive cases of Covid-19, ensure that those who are infected self-isolate and, as such, keep as many staff, pupils, and students in school as possible.
Whilst the testing regime offers hope for a long and stable return to school, it also raises several legal issues.
A question we are frequently being asked is what schools should do if staff refuse to take a test?
The testing regime is voluntary and ultimately a school cannot force a member of staff to take a test against his or her will.
If a member of staff does not agree to be tested, the school should listen to his or her concerns. It would be helpful to talk to the member of staff about the reasons why s/he does not want to get tested and what the school can do to help resolve the issue.
It is important to explain to staff why the regular testing is important and how it feeds into the wider risk assessment for the school. Schools should ensure that staff understand that schools have a duty to protect the health, safety and welfare of all pupils and staff, which is why numerous control measures have been put in place to minimise the risk of transmission of coronavirus around school, including ensuring that staff are regularly tested in accordance with the government guidance. Having guidelines in place for testing can be helpful, so that all staff can reference these if they are unsure about the testing process.
It is also important to reassure staff about the implications if they do test positive, for example in relation to the school’s absence management policy and sick pay, to alleviate any concerns in this regard. Again, this is where guidelines can be a helpful point of reference.
If staff members are still refusing to test, the school could consider whether there are any other options that mean the employee would not need to get tested, for example, if they are able to work from home.
In the exceptional circumstances in which we find ourselves, there could be cases where a refusal to have a test would amount to misconduct, but this would be highly fact-sensitive and legal advice should be sought in relation to the specific circumstances before any disciplinary action is taken.
ACAS has updated its working safely guidance to provide further information about workplace testing and vaccination for COVID-19, which can be accessed here.
We would also encourage schools to consider the guidance published by the Information Commissioner’s Office (ICO), accessible here in relation to data protection and privacy issues regarding the collection and retention of testing data.