The government guidance applicable in England proposes three options for workforce testing:
- Option 1: employer-led set-up (“DIY”). Employers can set up their own on-site testing programmes
- Option 2: third party providers. Employers who would like on-site testing but would prefer a private provider to organise and run the testing on their behalf. Employers will need to pay for this service provision, but are still eligible to order the free government testing kits
- Option 3: community testing through local authority testing sites
There is also the option to provide lateral flow test kits to employees to be taken at home, and ask that this happens twice weekly. No results or other health information needs then to be shared with the employer, although if an employee has a positive test, the employer should know as they will be required to self-isolate for 10 days. Note that for the purposes of the 10-day self-isolation period, the day of testing counts as day zero.
An employer may wish to use the above options in combination, for example testing on site for those who need to attend work daily or almost daily, with home testing regimes for those who attend the workplace less frequently.
The Working Safely Guidance states that where testing is provided on-site, employers should ensure that it is carried out in a safe manner and in an appropriate setting where control measures are in place to manage the risk of COVID transmission during the testing process. These include maintaining social distancing where possible, frequent cleaning, good hygiene and adequate ventilation.
Where employers may wish to set up option 1 or option 2 above, it is important to note that this will mean that the employer is processing Special Category personal data, namely health information, in relation to the staff involved. Therefore as employer, you need to be clear as to the grounds on which you are relying in processing this health information. These grounds are likely to be that it is necessary to ensure the health, safety and welfare at work of workers, to ensure a safe working environment, and for reasons of substantial public interest. Note it is not advisable to rely solely on consent in the employment context. The processing must also be proportionate.