September 17, 2020
As workers’ begin to populate office floors once more, employers must navigate a number of potential risks to ensure they are ‘COVID-19 secure’. As a result, the subject of ‘employee testing’ has made headlines, with the decision over whether employers can, or should, test their employees becoming an area of contention.
At present, there is no government guidance requiring employers to test their employees. Except in a few limited circumstances, only those currently exhibiting symptoms of COVID-19 can request a free test from the NHS. As such, if an employer wants to routinely test employees, it will need to be sourced and paid for privately.
In answer to the question of whether an organisation should be testing workers, employers should assess whether testing would be a reasonable and proportionate way to control COVID-19 in their workplace. Where it is impossible to social distance or where employees are public-facing, testing can minimise potential outbreaks.
It can also be useful for employees showing symptoms, or who have been in contact with someone with symptoms, as they could be cleared of the virus and return to work earlier, reducing disruption in the workforce.
However, in order to rely on the accuracy of a negative test result, the timing of a test is critical. As such, regardless of a negative test result, employees must continue to isolate if they share a household with somebody with COVID-19 symptoms unless that household member receives a negative test result. Likewise, if an employee has been advised to self-isolate by NHS Test and Trace, they must do so for 14 days, even if their test result is negative.
Although testing could potentially control the transmission of COVID-19, asking employees to be tested in order to identify possible asymptomatic cases could be considered an unreasonable instruction, especially if there is no clear and rational need for it given the specific circumstances at that workplace.
Business leaders should also remember that tests have been publicised as intrusive and uncomfortable, so may cause distress to some employees. Additionally, the administrative burden of testing as well as the risks of mishandling personal data or discrimination in conducting testing should be kept front of mind.
Can a business make testing compulsory?
Government guidance has already made testing compulsory for anyone with symptoms of COVID-19, which employers could reiterate. However, without symptoms, it may not be reasonable to require employees to take a test – whether as a one-off ‘return to work’ test or as part of a regular routine – which seeks to prevent the virus from entering the workplace.
To consider whether testing is appropriate, employers should review whether equally effective alternative measures to limit the transmission of the virus could be introduced, such as working from home or social distancing, and consider the organisation’s specific circumstances (i.e. the type of work undertaken and nature of the workplace). Employers should also consider whether the timing of tests, and how long it takes to obtain test results, will be sufficient in making it a useful tool.
Employees with symptoms who refuse to be tested could be subject to disciplinary action
Ultimately, employees must consent to be tested, making communication critical. To encourage this among employees, employers who wish to make it compulsory should consider implementing measures that guarantee the test (and a positive result) will not have detrimental consequences for an employee. For example, to ensure that there is no financial incentive to refuse testing, employers should consider extending company sick pay to those who test positive and must self-isolate.
As government guidance requires anyone with symptoms to be tested, employees with symptoms who refuse to be tested could be subject to disciplinary action. Otherwise, without a clause in the employee’s contract requiring a test, it may be unreasonable to sanction an employee who has genuine reasons for refusal.
Some employers are therefore considering a testing requirement in employees’ contracts to ensure that a refusal constitutes a breach that could warrant disciplinary action. However, while this would in theory be a breach of contract, employers should always review the employee’s personal reasons for doing so, and consider whether there are any mitigating factors that constitute a valid reason. It is also vital to consider whether consent has been freely given, as that is a key requirement under data privacy laws.
But if employees are happy to be tested, what are the key factors to remember?
Potential discrimination issues that may arise as a result of workplace testing should always be kept in mind. Compulsory testing for all employees could disproportionately affect those who fall into certain protected groups (for example, those with certain disabilities), and requiring only those at higher risk to be tested could result in claims of discrimination. Employers should think carefully and ensure that any potentially discriminatory effects of testing are justified as a proportionate means of achieving a legitimate aim.
Testing involves taking and storing employees’ health data, which is highly sensitive ‘special category’ personal data that requires the highest level of protection under the General Data Protection Regulation. Businesses who want to collect and use this data must satisfy one of the prescribed conditions for the lawful processing of the data (for example, the individual’s explicit consent or that processing is necessary for reasons of public interest in the area of public health) in addition to ensuring that their processing of the data has a lawful purpose and is fair and transparent.
Employers must also take care when storing this highly sensitive personal data and ensure that all testing is necessary and proportionate. This can be achieved by conducting a data protection impact assessment, which can also demonstrate how any risks can be mitigated.
The following should be avoided when carrying out testing on employees:
- Collecting more data than necessary for the purpose of keeping the workplace safe: employers should be dating tests to ensure accuracy and should only ask for employees’ details that relate directly to COVID-19;
- Keeping public lists of employees who have been tested: lists should be confidential, anonymous where possible, and should not be used for any other purpose than keeping a record of testing; and
- Naming employees who have tested positive: while employers have a duty to maintain the health and safety of their employees, this must be balanced against the individual’s right to privacy and individually identifying those who test positive is usually avoidable.
Above all, employers should be transparent with their workforce. At the earliest possible stage, they should clearly explain to their employees what data will be required, what it will be used for, who it will be shared with and for how long it will be retained. With the appropriate due diligence beforehand and open lines of communication with employees, testing regimes can be effectively introduced.
Image by Shafin Al Asad Protic