The Government have now announced that workplace COVID-19 testing is available to all businesses, including those with less than 50 employees. The recent press release can be found by clicking here. Businesses are encouraged to register by 31 March 2021 to access free workplace testing. With this in mind what might you need to consider?
Should we offer testing?
Employers must show their approach to testing is ‘reasonable, fair and proportionate to the circumstances’. With this is mind employers should consider the type of work and premises, the extent to which testing will contribute to a safe working environment and whether alternative measures could be effective in limiting transmission of Covid-19. Many employees will willingly undertake testing if offered to limit the risk of an outbreak. It will be more likely that testing is ‘reasonable, fair and proportionate’ in an environment where risks cannot be managed in other ways such as social distancing.
What do we need to consider in terms of data protection?
Test results would be classed as ‘special category data’ and employers must use and store this information in line with GDPR. The Information Commissioner’s Office have provided specific guidance regarding this and advise carrying out a data protection impact assessment which can be found by clicking here. If businesses have good reason for testing, employers must process the data in accordance with GDPR and inform staff on why and how they intend to use it. Individual consent would be required to conduct each test as you cannot force someone to take a test.
Can we make testing mandatory?
As Government guidance requires those with symptoms to obtain a Covid-19 test, it is reasonable to instruct an employee to take a test as employers have a duty to protect the health and safety of their employees. However, the same might not be said if an employee does not have any symptoms and are being asked to test routinely to identify possible asymptomatic cases. You will need to consider whether testing is reasonable in these circumstances by also considering how the risk of Covid-19 can be managed in the workplace through the type of role, social distancing, remote working and other measures.
If testing is considered to be proportionate and necessary and you want to make it mandatory rather than voluntary, you could enforce this contractually with new starters by making testing a contractual obligation. If they do not then cooperate, this would be a breach of contract. However, to do so for existing employees would mean consulting them with regards to the contractual change. Seek advice here where required. Many employees will volunteer to take a test, but if employees do refuse, you should consider each case and the reason for refusal before deciding whether to take action. Many employers will offer testing but on a purely voluntary basis.
What else should we consider?
If you decide to offer testing, you will need the consent of your staff. Employees are more likely to consent if they understand the reasons why testing is being introduced and that you will handle their data in line with GDPR. Communication is key to introducing testing by explaining that you are trying to limit outbreaks and therefore, closures in the workplace which could affect the business long term. Employees may also be more likely to volunteer if they won’t suffer financially if they test positive. This can be an issue if your sick pay offers SSP only and they cannot work from home as they would be disadvantaged. You could consider maintaining their pay if they do test positive and are required to self-isolate, but this won’t be an option for many employers.
You will also want to consider who will carry out the testing, some companies carry this out internally and some carry it out via a third party. You should read the guidance on gov.uk here. This guidance covers what you will need to consider in terms of location, communication etc.
You may also want to consider a Covid-19 testing policy as part of your communication, so that information and expectations are clear for all parties about whether testing is voluntary, mandatory, what happens in the event of a positive test and how data will be stored.
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