November 3, 2020
The NHS COVID-19 App was introduced on 24 September. Many welcome its arrival as another step to contain the spread of COVID-19. Others are concerned about using the app for data and privacy reasons. Employers face a dilemma. It is not mandatory for staff to use the app. Employers can do nothing and leave the choice to download to the employee or express a view about whether the app should or should not be used in the workplace. This is particularly relevant for those businesses who provide work devices.
Employers could introduce a requirement that employees use the tracing app on a device that is provided by an employer. If it is not possible to guarantee social distancing between staff in the workplace there are compelling arguments for this approach. Use of the app is another way to protect health and safety in the workplace and should help to minimise sickness absence.
If a business wants employees to use the app and intends to process personal data produced as a result it needs to take advice on whether this complies with its obligations under GDPR and the Data Protection Act 2018. Employers also need to be satisfied about the data security if they plan that employees must use it and share health data with their employer.
If employees do use the app then the employer must rely on employees’ self-declaration of exposure to infection. For employees who can work from home during any period of isolation this is fine as their pay and ability to work will not be affected.
On 26 October the Government updated the NHS Test and Trace guidance to ensure better compliance. Employers must not knowingly allow an employee who has been told to self-isolate to come to work or work anywhere other than home. To fail to do so could result in a fine that starts at £1,000. It is also now a legal duty that employers must not knowingly allow a worker to come into work or encourage them to work anywhere other than their place of self-isolation, if the worker has been told to self-isolate by the NHS Test and Trace app.
Workers have a legal duty to notify employers that they have been instructed to self-isolate before they are next due to work. This is enforced by a £50 fine.
So, is it better that employees don’t use the app at work? This approach has been taken by some employers, even behemoths like GlaxoSmithKline (GSK). It has been reported that the pharmaceuticals giant has told thousands of staff working at its research and development labs and its manufacturing sites to switch off the app when at work. GSK has said that it has taken this step because these working environments are highly controlled, and the company is “following the highest COVID-19 security and protection protocols.”
Businesses employing those working in closely controlled working environments may choose to follow GSK’s lead. Before doing so, they must be confident that the they are able to offer and maintain the highest standards of protection against COVID. Even if these conditions exist, employers should be aware that the app is still an important part of the defence against COVID-19.
Considering this, some employees may feel strongly that they should be allowed to continue to use the app at work as this is part of their fight against the disease. Forcing them to switch off the app is likely to result in employee relations issues. Many stakeholders may also view this negatively leading to reputation management issues.
The pressure on businesses to be confident that they are taking all steps to protect the health and safety of their employees in the workplace using other measures increases is high. It also puts pressure on businesses to give clear messages about these steps to concerned staff and relevant stakeholders.
No employer can prevent an employee from using the app outside work. If an employee develops COVID symptoms but has used the app outside the workplace, without being requested to self-isolate through it, it strongly suggests that the illness has been contracted in the workplace. This potentially enhances the risk of a claim against the employer especially if the ill employee can point to occasions when the employer’s COVID defences were breached.
The introduction of the NHS COVID-19 App is an important part of the fight to stop the spread of Coronavirus. Employers face the dilemma of balancing the need to protect the health and safety at work of staff and protecting their personal data with the need to ensure that their businesses remain operational and productive.
Requiring employees to download this app is one element for businesses to consider in ensuring employee safety. It is, however, a delicate balancing act where the employer must centre employee wellbeing and business needs.
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