Under the COVID-19 Public Health Response Act 2020, the Government, (The Minister of Health and Director-General of Health) can order a test. Employers can pass that order on and cooperate with requirements – but can’t enforce it.
“The Ministry of Health isn’t able to direct an employer to direct its employees and/or contractors to undergo the test…it can [only] direct individuals,” Mills said.
Can my employer ‘make’ me take a COVID-19 test?
It’s reasonable for employers to ask staff to get tested, particularly those whose jobs put them in close contact with others.
But whether they can enforce a test comes back to the employment agreement. In most cases, they can’t.
“It would be highly unusual for an agreement to specify COVID-19 testing but if it did, the employer would first need to establish that the instruction was lawful,” Mills said.
If this was the case and the employee doesn’t get tested – or refuses to get one, only then could the employer take disciplinary action.
Dr Bill Hodge, faculty of law at the University of Auckland said as with random drug testing (e.g. urinalysis), employers couldn’t make a snap decision to get all staff tested. They should consult with them first and develop a policy.
“They [employers] should consult first, then provided that the employees have some contact with each other or with customers, I think they can do it…if they’re working from home, probably not,” Hodge said.
As part of the process, employers could arrange a meeting and ask for consent. Employees may say, “we have no objection, as long as it is free”.
Who should pay for costs of taking a test?
The COVID-19 test is free, but there may be other costs involved in getting one. According to Mills, if an employer requests a test and the employee agrees, test-related costs should be reimbursed.
“If an employer requires and instructs an employee to take a COVID-19 test (on the basis of a contractual term and the employee agrees to [have] a test, or otherwise agrees to undergo the test), the employer has an implied duty to indemnify/reimburse the employee against all reasonable costs incurred as a result of that instruction,” Mills said.
Examples could be reimbursement of petrol, parking or public transport costs, and any other expenses or losses the employee may reasonably incur.
Hodge agreed, adding that for larger companies, it may be more efficient to organise onsite testing.
Are there examples where employees have refused to take tests?
Although the Ministry of Health has directed people to get a test and employers have helped to facilitate the process, there aren’t yet any examples of employers enforcing COVID-19 tests on their employees.
“We may very well see examples of this as New Zealand’s workplace testing ramps up,” Mills said.
Anyone who has COVID-19 symptoms is urged to get a test done, particularly health and aged-care workers, those aged over 70 and those with pre-existing health conditions.