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Can employers enforce tests for COVID-19?

In order to achieve a safe return to everyday life, with the gradual removal of the lockdown measures, it will be necessary to ensure the protection of the working environment. According to the new measures, to address the risk of Covid-19 transmission, all employers intend to ask employees to provide tests for the virus to ensure their safety on their return to the workplace. It is important to consider whether the introduction of a mandatory covid-19 test for employees is lawful and if there are any risks that employers should consider.

In Cyprus, businesses employing up to 3 people must make sure all get tested every week. For businesses employing 4 to 10 people, at least 4 need to get tested weekly. For businesses with more than 10 employees, at least 4 or 20 per cent of them need to get tested, whichever is numerically greater.

The measure was instituted as the government eased restrictions (February 2021) allowing certain businesses to reopen.  Each business must draft a rotating schedule for testing their staff. Employers who do not do so are liable to a €300 fine per employee who should have got tested for the week in question but was not. Where an employee is informed of the obligation to undergo a Covid-19 test, but does not comply, the employee is fined €300.  Health ministry and officials of other competent services will be carrying out intensified checks in businesses to ensure the mandatory rapid testing measure is observed.

The first question that arises is whether testing is necessary and proportionate. On the first place, it is possible that the combination of voluntary covid-19 testing in conjunction with additional safety measures may be an assurance to employees that their workplace is safe. Nevertheless, test results are classed as special category data, so employers must use and store this data according to the General Data Protection Regulation (GDPR).

Every employer is legally required to continuously evaluate the work environment and take all necessary action in view of possible risks.  Appropriate measures must therefore be taken to ensure health and safety at work. Examples of this type are providing disinfectant, antiseptic and providing alternative measures that could limit transmission such as strict social distancing or working from home.

On the question of whether businesses can make the test mandatory, there is guidance from the Government that requires anyone with Covid-19 symptoms to arrange a test and in such case, employers can also reasonably instruct an employee exhibiting symptoms to be tested because of their duty to protect the safety of their employees. In case an employee test’s results are positive, the employer must take action to mitigate the risk of transmission at the workplace.

However, it may not be considered reasonable for the employer to require an employee to be tested if there are no symptoms at all. In order to see if the test is reasonable under specific circumstances depends on whether the risk of Covid-19 in the workplace cannot be addressed by other measures, such as remote working and social distancing.

What needs to be considered is the factual set-up under which a business operates. In this case, it’s a balancing act between public health and personal liberties.

In cases where the test is considered necessary and proportionate, businesses can make testing a contractual obligation. If the test obligation is validly incorporated in the employee's contract, then failure to comply would constitute a breach that allows the employer to take disciplinary action. However, in case of refusal, the employer must consider the individual circumstances of the employee or any other mitigating factor that constituted valid reasons for refusing to be tested. Moreover, employees are more likely to consent to be tested if they are confident that the employer will handle such personal data with sensitivity and security and that if their test is positive, they will not face any financial consequences.

Therefore, by emphasizing the necessity of the test and that it is a proportionate means of limiting the spread of Covid-19 in the work environment; employers would gain the support of employees to be tested precautionary with their consent.