Can an employer mandate a COVID test?

Rapid testing kits are a key tool in the fight against COVID-19

BY Contributor 01 Oct 2021

By Kathryn McKinney, Partner, Anthony Harper

Rapid COVID testing kits will soon be a reality in New Zealand. So, will employers be able to require employees to pass a COVID test before allowing them into the workplace?

The answer is most likely, yes.

But whether an employer can COVID test an employee will depend on whether they can demonstrate that COVID testing is a reasonably practicable step they are required to take to ensure health and safety in their workplace. Unlike vaccination, testing is not considered to be a medical treatment and the Courts have already held that other forms of testing such as drug testing by employers is justified in certain situations.

So COVID testing is likely to be easier to justify than mandating that a role must be performed by a vaccinated worker. Rapid COVID testing will likely already be justified in most high-risk workplaces and for essential workers operating under Level 3 and 4 restrictions. Some form of COVID testing regime will also likely be justified in other workplaces, in future, when people are required to return to work while COVID is in the community.

Employers wanting to introduce a COVID testing policy will need to conduct a safety analysis in consultation with staff to determine whether a testing regime is justified. The safety analysis should include consideration of factors such as:

The current level of community transmission (whether the employee is required to work while COVID is in the community)
The level of risk of transmitting COVID in the particular workplace (is the workplace indoors or outdoors, do people work in close proximity to others)
The level of risk posed by that transmission (does the employee work with vulnerable people such as in aged care)
Other steps taken to manage the risk such as PPE
The availability, cost and efficacy of the testing method (there are a variety of rapid testing methods already used overseas)

Any testing regime will also need to comply with the Privacy Act by ensuring the method of collection of the information is not unreasonably intrusive and any testing information collected is used only for the purpose for which it was collected and is stored securely.

Where an employee returns a positive COVID test, the employer will be justified in requiring the employee not to attend the workplace until they have recovered.