Employee caught breaking lockdown rules on social media, can employer require a COVID test from them before returning to work?Posted in : Seamus Says - Employment Law Discussion on 9 April 2021 Issues covered: COVID-19; COVID-19 Testing; Lockdown Restrictions
Could it be reasonable, Seamus, for an employer to require an employee to get a COVID test before returning to work where they have been told that the employee was breaking lockdown restrictions over the weekend and it's been reported on social media or seen on social media that that employee's been doing?
Seamus: Potentially, and I think it would depend on the industry that you're working in. I mean, obviously, if you are in a care home, a nursing home, something, where there is, you know, that vulnerability, is there or even a business that is close contact. You know, we know about various food production companies and the meat factories and things like that. I think it wouldn't be appropriate just to summon the employee and tell them they have to have a COVID test. There needs to be some form of reasonable investigation conducted and carried out in relation to the circumstances, and I think before any decision could be made, to say to the employee that you're not permitted to return to work until you've had a clear negative COVID test and, you know, the company would need to . . . or the organisation would need to satisfy itself that that's reasonable in the circumstances.
So I think that an investigation . . . what that would mean having discussions and meeting with the employee and putting it to them if they had breached lockdown provisions and, really, doing a risk assessment, I think, and making sure that you walk through that process and that there's a careful note taken and the records are kept before there's any sort of decision made to say you can't return to work until you have a negative test.
Scott: Or indeed we're not going to pay you.
Seamus: That's a whole nother issue, but certainly, you know, it takes me back to, you know, maybe in around September, October, November time when numbers of COVID were on the increase and some people were, you know, leaving the country on flights maybe for recreational or family reasons or whatever it was, and I had a number of queries at that stage where employers were saying, "Look, if this employee comes back into work and is infected, you know, there's the potential of closing our business down for a number of weeks. It would be my preference that this employee, you know, has a negative test before they're permitted to return." And, you know, given advices on that and taking a cautious approach with it but absolutely understand the employer's concerns.
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