Mandatory Covid testing in force in some UAE business sectors

The mandatory testing requirement, which applies from 28 March 2021, extends to those working in hotels, restaurants, transportation and the health sector, as well as those performing "social and personal" services in laundries, beauty salons and hairdressers. Workers who test positive for Covid-19 will be required to follow all applicable treatment and isolation requirements.

The MoHRE, in a circular communicating the new requirements, urged all private sector employers to encourage their staff to receive both doses of an approved Covid-19 vaccine "as early as possible". The UAE has delivered over 7.7 million vaccine doses to date, at no charge to the public.

Employment law expert Ruth Stephen of Pinsent Masons, the law firm behind Out-Law, said that the instruction from the MoHRE was the first to target private sector employers. Unvaccinated government sector employees have been subject to a similar testing obligation, requiring a PCR test every seven days, since February.

"This could potentially pave the way to include other business sectors," she said. "However, it is likely that any further development in this area would be limited to business activities and employees that are in close contact with a large number of people as part of their daily work habits."

"The circular is silent in respect of who is responsible for the cost of the PCR testing; however, it is readily foreseeable that the MoHRE expects this obligation to fall on the employer, together with any penalties for non-compliance. In any event, employers caught by the scope of the circular will need to act fast to ensure that they have the necessary arrangements and procedures in place to ensure compliance by 28 March," she said.

In particular, employers must put in place clear staff policies around recording the results of the PCR tests and the vaccination status of individual employees, given the UAE's far-reaching privacy laws, she said.

The UAE's vaccination programme is voluntary, and there are no laws under which employers can impose a vaccination requirement as a condition of employment. However, UAE employers are subject to legal duties to protect the health and safety of their employees and regional laws requiring them to prevent the spread of communicable diseases, while employees are subject to legal duties to abide by reasonable instructions issued by the employer for the purposes of health and safety.

Whether or not a request by an employer for an employee to be vaccinated is a 'reasonable instruction' will depend on a range of factors including the nature of the workplace, the type of work and the individual employee's circumstances, according to Luke Tapp of Pinsent Masons. In addition, where a vaccination requirement is reasonable but an employee refuses to be vaccinated, the employer will have to carefully consider the reasonableness of that refusal to avoid the risk of future claims.

Ruth Stephen said that even those employers falling outside of the scope of the new requirements remained subject to general health and safety law requirements, of which regular testing could potentially form a part.

"The UAE Labour Law places a legal obligation on employers to ensure the health and safety of their employees, and testing employees for Covid may form part of this overarching duty," she said. "To gauge the extent of their responsibilities to maintain a safe and healthy place of work, employers should conduct timely risk assessments of factors including how contractual duties are performed; the extent of 'close contact' with colleagues and customers; and employee travel arrangements to and from work."

"Employee testing and screening forms only one part of the broader responsibilities and issues employers are currently considering to protect their personnel and business interests. It is likely that new and additional issues will arise for employers as we move through the months of 2021 – for example, a Federal data privacy law may be on the horizon and this, in and of itself, could open up a raft of new employee personal data considerations for employers around the lawful processing and storing of employee medical data, for example," she said.