As this is a developing and untested area of employment law, whether an employer can demand proof of a positive Covid-19 test is not wholly straightforward.

In this post, we outline:

  • what an employee should know before refusing to disclose a test result
  • what an employer must be aware of before requesting a positive Covid test result from an employee

An employer’s duty of care and responsibilities

Employers have a duty to protect the health and safety of their employees. This includes ensuring the workplace is covid-secure and as safe as reasonably possible.

Employee in office wearing face mask to avoid possibility of a positive Covid-19 test

Adjusting workplace policy for Covid protection

Employers should ensure they have a clear policy in place which sets out how to deal with Covid-19 and the issues it causes, such as employees with a positive test result.

The policy needs to be transparent and accessible to all employees so they understand the situation. It should deal with absence and make clear what’s expected if the employee needs time off work, including when a sick note or Covid test result is required.

Any policy changes should be discussed with employees and agreed with them wherever possible.

Employee isolation and time off work

Currently, you must isolate if:

  • You have coronavirus (COVID-19) symptoms or have tested positive
  • Someone in your household has tested positive and has been identified as a suspected or confirmed case of the Omicron variant of COVID-19
  • You are not fully vaccinated and someone in your household has symptoms or has tested positive for any variant of COVID-19
  • You are told to self-isolate by the NHS Test and Trace service

If you cannot work because you must self-isolate, tell your employer as soon as possible.

Employee staying in bed after a positive Covid-19 test

Steps the employer can take in the event of a confirmed case

The usual workplace sickness absence process should apply to any employee who cannot work, so begin by checking what this states.

Under normal circumstances, employees do not need to produce a sick note for any absence of fewer than seven days.

For any period of absence more than seven days, employees are normally expected to provide a note from their doctor.

An employer can ask for a doctor’s report about their employee’s health if it is needed (e.g. for health and safety risks) but only with the employee’s agreement.

When notified of a positive test result, an employer does not necessarily need to close the workplace. However, it should be cleaned in accordance with government guidance as appropriate.

It is recommended that employers keep their employees informed about COVID-19 cases in the workplace. However, employers must consider GDPR implications and should not name the affected employee.

What happens if your employer asks for proof of your positive Covid-19 test?

In some cases, your employer may have been informed about your positive test result by NHS Test and Trace. If they have not, they may ask for proof of a positive result.

The consequences of refusing to disclose a positive test result will depend on the individual circumstances of the case. Was the employer’s request reasonable and proportionate in the circumstances? Was there a reasonable and justified reason for refusing?

Employer and employee on a video call after employee had a positive Covid-19 test

If you do refuse, your employer may consider taking disciplinary action. However, the issue will be whether this is a reasonable and proportionate response in the circumstances.

Considerations should include whether any discussion between employer and employee was allowed to take place, and what the risks and implications of refusing to validate an infection were.

Other factors that may colour the reasonableness of the employer’s decision may include:

  • whether not having proof of a positive result would affect the employer’s ability to protect other employees;
  • their ability to discharge their legal responsibilities, particularly in respect of any new variants.

Getting professional advice about the implications of a positive Covid-19 test

As this post has stressed, the effects of Covid on employment policy and employee rights is a new and developing area. This means the legal implications can be confusing and the consequences unclear.

At Springhouse Solicitors, our team of experienced employment law solicitors are able to provide years of combined legal expertise to help you better understand your position – whether you are concerned about your workplace rights when ill, or an employer contemplating the possibility of disciplinary action due to staff absence.

If you would like an initial discussion about your circumstances, please get in tou

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Updates: For employers: Sickness issues | For employees: Sickness |

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