Do the Benefits of Testing Outweigh the Negatives?
On the one hand, every employer has an obligation to take all reasonably practicable steps to ensure the health and safety at work of all its employees. This may include requiring some or all employees to submit to COVID-19 testing in certain circumstances.
On the other, the tests for COVID-19 can be uncomfortable, reasonably invasive and the results take time to be processed. They are also expensive.
So, any employer should consider carefully whether the (necessarily temporary) benefit of being able to assure staff that they were (at some time in recent history) COVID-19 free is greater than the negatives of putting them through the tests and the employer through the expense, especially when there are other low cost and targeted approaches like requiring employees who have come into contact with those with COVID-19 or who have travelled overseas to undergo a 14 day quarantine.
Another way of thinking about this is whether there is a more efficient way of spending the money it would cost to test the employees. At the moment, unless you are a premier league football team looking to assure competitors that you are free of the virus, we would suggest that, with the current state of testing, most employers would consider that testing all employees is likely not to be an efficient use of resources. However, there may come a time when the cost of testing and the speed of getting results may make testing a desirable and reasonably practicable option.
If You Do Decide to Test, Does the Disability Discrimination Ordinance (DDO) Permit You to Do So ?
The DDO provides that it is unlawful to treat an employee less favourably on the ground of his or her disability. So, singling out individual employees or a group of employees for testing may be less favourable treatment on the ground of an imputed disability. However, it is not unlawful disability discrimination if the person’s disability is an infectious disease and the discriminatory act is reasonably necessary to protect public health. COVID-19 is an infectious disease and so the issue is then whether requiring the employee to submit to a COVID-19 test is reasonably necessary to protect public health. This will depend on the circumstances. For example, it may be reasonably necessary where an employee has come into contact with those who are infected and/or works in health care coming into close contact with high risk individuals who are aged or immuno-compromised.
What Are the Implications of the Personal Data (Privacy) Ordinance (PDPO)?
An employer looking to test its employees will need to comply with the PDPO as the testing will, inevitably, involve the collection and processing of employees’ personal data.
In particular the employer should check that it has an appropriately worded personal information collection statement, also known as a PICS, in place which enables an employer to do testing and provides employees with the necessary information.
The employer itself is unlikely to be executing and processing the testing. Instead, a third-party provider will almost certainly be doing this. As such it may be necessary to get additional consent from the employees to permit the third-party provider to release the results of the test to the employer. Should an employee refuse to provide such consent, it may be possible for the employer to discipline the employee if it can show that the request for consent is both lawful and reasonable (see below).
What about the Contract of Employment?
In an ideal world the employment contract would give the employer an express power to direct the employee to submit to a COVID-19 test. However, such express power would be unusual. As such, the employer may need to rely on the general right to give an employee a lawful and reasonable direction to require the employee to submit to a COVID-19 test.
Who Should Pay for the Test?
If the employer requests the employee to take the COVID-19 test in the execution of the employment contract, then the employer will have to pay for the test. This is consistent with the employer’s duty to indemnify employees for any expense or costs incurred by the employee in the reasonable execution of their employment contract. However, in some (perhaps rare) circumstances an employee may be asked to pay for their own tests if the employee voluntarily placed themselves in the situation where they need to be tested to perform their work.
Each employer will need to carry out its own individual risk assessment to see if COVID-19 testing is appropriate for its own business. If it decides to do so then it will need to manage the potentially emotional reaction of a considerable portion of its workforce. For this reason we envisage that, in the current environment, few employers (other than those that work in the most at risk industries) will be undertaking mass COVID-19 testing