In the news this month:

COVID-19: Workplace Testing. With progress being made on the roadmap out of lockdown, and more categories of workplace re-opening or increasing staff numbers on-site, the government is putting a strong emphasis on the importance of employers setting up workplace testing programmes for their staff.

COVID-19: Workplace Testing:

The government is encouraging employers to set up workplace testing for asymptomatic staff. Employers who register before MIDNIGHT on 12th April 2021 through the government’s get-workplace-coronavirus-tests website are eligible for free rapid lateral flow tests until 30 June 2021 under the government’s workplace testing scheme. Where it is not possible to set up testing on-site, due to a lack of space or because companies operate across multiple sites, businesses with 10 or more workers will also be able to order home test kits for their staff.

The government acknowledges that it is a voluntary decision for employers to run testing programmes for their staff. However, employers are strongly encouraged to commit to test their employees who cannot work from home regularly to reduce the risk of transmission, and the government recommends that private sector employers offer their workforce who are on site two lateral flow tests every week.

Testing Options

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.

Changes to Company Policies

Employers should put in place a Workplace Testing Programme Policy, which should be drawn up in consultation with staff representatives.  As employers should inform staff about the following before carrying out any employee testing, it is sensible therefore to include this information in this Policy:

  • What personal data is required.
  • Why it is required (the grounds for processing).
  • What it will be used for.
  • Who it will be shared with.
  • How long it will be kept for.
  • What decisions will be made based on the test results.

It will also be important to review your general staff Privacy Notice to make specific reference to testing and use of test information.  It would also be advisable to undertake a data protection impact assessment.

Note the above data protection issues and steps are also relevant to temperature testing onsite.

ACAS Guidance on working safely during Coronavirus includes a new section on testing. It emphasises that there is no legal requirement for staff to be tested for COVID-19 and in most situations it is not necessary. Although consent is not sufficient for data protection processing purposes, it will obviously in practice be required in order to administer testing.  To proceed without consent could potentially be a repudiatory breach of contract in respect of employees, entitling them to claim constructive dismissal, and assault in relation to any individual.  It is hoped however that consent will not be difficult to obtain from staff, In cases of reluctant individual employees, open dialogue is encouraged to discuss reasons for the testing and reasons for the reluctance.

It is important that employers continue to follow the working safely measures, even if their employees have either received a recent negative test result or had either one or both doses of a vaccine.

Where a local PHE health protection team declares an outbreak, employers will be asked to record details of symptomatic staff and assist with identifying contacts. Employers are therefore advised to ensure that all their employment records are up to date with staff contact details.

Contact Kate

If you have any questions on setting up a workplace testing programme, please contact Kate Lawson on 01892 516 216 or katelawson@elementlaw.co.uk