UK COVID testing - returning to the workplace part 3

Question

Points to note

What approach should employers take on testing for their staff?

Whilst there is no specific legal requirement for employers to provide LFD testing kits to their staff, or to inform them how they can obtain such kits, most employers will wish to do so, given the current Government guidance. Primarily, therefore, the question will be whether to make testing voluntary or mandatory.

The stance which an employer will take will depend on a number of factors, which may include the sector within which it operates, the views of its workforce/health and safety representatives/trade unions and the number of staff currently attending the workplace (bearing in mind that the Government’s current guidance – which is likely to remain in place until at least 21 June - is that staff should continue to work from home where they can).  Employers in sectors such as non-essential retail, personal care and outdoor hospitality, who are now out of lockdown in accordance with the Government’s roadmap, are already accessing asymptomatic testing, so will be paving the way for those sectors which have yet to return.   

To date, many employers have opted for a voluntary approach to testing but, as time moves on, and more people return to workplaces, we may see a shift in attitudes towards this becoming compulsory. Those employees who have been happy to take a test might have understandable concerns that others are attending work without having also done so. One could also envisage an increasing criticism of employers (from a variety of sources including the Health and Safety Executive, local authorities, trade unions or customers) for failing to keep the workplace sufficiently safe by allowing people to choose whether they take a test before attending work.  

In this rapidly developing situation, an employer’s approach will also be influenced by any changes in public health advice as a result of factors such as the emergence of new variants, further scientific evidence on the degree to which being vaccinated will reduce the chance of passing on the virus and the roll-out of the vaccine to further age groups. Any updates to the Government’s COVID-safe guidance, together with broader societal acceptance and awareness of testing and its importance, will also play a part.

There are a number of practical and legal considerations which we explore in more detail below.

What are the main types of COVID tests employers should be aware of?

Most COVID testing currently takes the form of a “swab” test, requiring a sample to be taken from the person’s nose and/or throat. These swab tests are categorised as either Polymerase Chain Reaction (PCR) or LFD tests. The aim of such tests is to check whether a person is currently infected with COVID. Both PCR and LFD tests are relatively non-invasive and easy to carry out.

PCR tests have primarily been used by the National Health Service (NHS), usually to test those experiencing COVID-like symptoms. PCR tests should be administered, and their results interpreted, by a trained and qualified healthcare professional. The turnaround time for PCR results can be 24 hours or more, but they are known to be better at finding smaller amounts of the virus. PCR tests are also undertaken on a confirmatory basis, following a positive LFD result.

LFD tests, on the other hand, are used for asymptomatic testing and can be carried out on a self-administered or assisted basis, for example, at a community testing centre, a workplace or at home. They can deliver a result within 30 minutes, but can be less accurate than PCR tests if not administered properly.

What options are available for an employer’s COVID testing programme?

Where the employer has sourced the kits, the main decision for it to take is whether the testing will take place on-site (where the worker then awaits the result of their test before being able to commence work) or whether it is carried out by the member of staff at home prior to attending the workplace. Where it takes place on-site this can be carried out on a “DIY” basis (the employer setting up their own testing programme) or by a third-party (where an accredited private provider organises and runs the testing programme on the employer’s behalf).

Employers will need to decide which testing regime works best for them, having regard to their COVID risk assessments. An employer’s choice of approach will be influenced by issues such as employee working patterns, how much control the employer wishes to have over the testing process, where staff would prefer to carry out the test, whether the employer has the resources to have a testing facility on site, any logistical problems if a worker tests positive at the workplace and then has to get home, and more.

The data protection implications of each programme will also need to be considered. (See further below).

Employers in England, with employees unable to work from home, who registered their interest before midnight on 12 April 2021 will remain eligible for free LFD tests until the end of June, enabling them to test employees twice per week in the workplace. Registered employers with over 10 employees who are unable to offer on-site testing can also order free tests for employees to use at home. (It appears that a combination of these two approaches will be possible).

As mentioned, since 9 April individuals in England who cannot get tests from their work are able to order LFD test kits online to be delivered to their home, or they may collect tests from participating pharmacies. Individuals can also access the community LFD testing offered by local authorities.

What practical issues should employers consider before implementing their COVID testing programme?

Employers should consider the following issues:

• who the testing will cover, namely, whether it is restricted to directly employed staff, or will it include other individuals working on site, such as contractors
• how often staff will be tested (the Government recommends twice per week)
• the appropriate facilities for carrying out the tests (assuming the employer does not intend to rely solely on self-administered home tests)
• what the arrangements will be for any individual who does not wish to be tested
• how the employer will use test results, including its policies on matters such as the processing of health data or absence from work
• the compatibility of the programme with the employer’s legal responsibilities to staff (including under health and safety (H&S), equalities, data protection and employment laws)
• how the legal duty to report test results to Public Health England (PHE) will be met
• the affordability of implementing a testing programme (given there is no guarantee of any Government funding, after the end of June – though this may now be offset by the ability of the individual to obtain their own testing kits)

Should employers develop  a COVID testing policy?

Yes, in our view employers should consider implementing a written policy on COVID testing. Such a policy would typically cover:

• the nature of and background to the policy, in particular covering why the policy is being introduced. Usually, this will refer to the employer’s duty to keep workplaces safe or the public health benefits of the policy
• to whom the policy applies, and whether it is mandatory or merely “encouraged”
• an explanation of the testing process which is being used
• how often testing will occur
• provision for exemption from testing
• the implications of a positive or negative test result
• how an unreasonable refusal to participate in testing will be approached
• data protection consequences

Internal communication and employee engagement will be an important part of any employer’s decision to introduce a testing programme. Employers are also strongly advised to consult with their staff associations or unions ahead of developing and implementing any policy.

What are the data protection implications of employer-led COVID testing?

The data protection issues of an employer-led COVID testing regime should be considered very carefully and are separate from whether or not an employee is willing to undergo testing. Employers should always ensure they have referred to the latest  guidance on testing from the Information Commissioner’s Office (ICO) and we advise any employers proposing to collect testing data to conduct a data protection impact assessment.

Where the employer does not collect testing data, there are no data protection implications. So any testing programme which does not require workers to communicate the outcome of a test to the employer is not caught by GDPR requirements. This might, of itself, influence the type of programme an employer wishes to implement.

In summary, COVID testing data is personal data relating to health and, due to its sensitivity, is classed as “special category data” which means additional safeguards need to be put in place where this data is processed by an employer. Not only will employers need a lawful basis (most likely “legitimate interests” in this context), but they also need to identify an Article 9 condition to process testing data. The ICO guidance suggests employers may consider the employment or public health conditions in this regard.

Transparency will be key so employers should ensure their fair processing notices confirm to employees how testing data will be processed including:

• steps taken to ensure it is processed fairly and transparently
• what personal data will be required and for what purpose it will be used
• with whom testing data will be shared
• for how long testing data will be retained

What if an employee refuses to undergo testing?

In summary, our view is that where mandatory testing is introduced, refusal to be tested without reasonable grounds could lead to disciplinary proceedings, and potentially dismissal. However, reaching the point where it is safe to dismiss may not be straightforward, as there are a number of issues to consider.

Employers will typically seek to rely on their COVID-related H&S obligations, and it would be difficult for an employee to challenge an employer’s approach in this regard: employers are entitled to devise their own systems for keeping workplaces safe, and mandatory testing must be an acceptable part of the armoury.

However, an employment tribunal would scrutinise the process pursuant to which such a testing regime was brought into place. Were workers and representatives, including any trade unions, properly consulted about the proposals? Were any recommendations taken on board? Did the employer consider, for example, introducing a testing requirement as part of other policy changes which reflect their new COVID-safe working conditions, or even introducing a contractual term? Such measures would place an employer on stronger ground in terms of bringing disciplinary proceedings in relation to a refusal to be tested.

If the employee does provide a potentially valid reason for not taking a test the employer should explore whether they could be allowed to work from home whilst the pandemic persists, or redeployed to another role where COVID H&S concerns can be addressed more adequately via other methods.

What are the legal and practical consequences of an employee testing positive at work?

Employees undergoing LFD testing (self-administered or assisted) are expected to register online to report their results to NHS Test and Trace. Positive results must be reported, but the reporting of negative and invalid results is also encouraged as this helps the NHS to monitor the spread of the virus. The Test and Trace systems then link an employee’s registration record with their test result, with results formally confirmed to the individual via SMS and/or email.

Anyone who receives a positive result from an LFD test must self-isolate immediately, as must other members of their household, pending obtaining a confirmatory PCR test via the NHS. Employers should ensure that employees are made aware of the need for swift action in this regard, as NHS Test and Trace is now able to automatically inform anyone self-isolating from a positive LFD, and their contacts, to cease isolating if the confirmatory PCR is taken within two days and is negative.

There is, of course, a legal duty for an individual to self-isolate where:

• they receive a positive COVID test result and/or they are a close contact of someone who has tested positive; and
• they have been notified of the need to self-isolate by NHS Test and Trace, a person employed or engaged for the purposes of health service, or a local authority

Individuals are obliged to inform their employer if they have been required to self-isolate, but do not otherwise have to share their test results directly with their employer unless appropriate arrangements have been put in place. If results are communicated to the employer this information must be kept confidential and secure in accordance with data protection principles.

Furthermore, employers must not knowingly allow a person who has been told to self-isolate to work anywhere other than where they are self-isolating. There is a risk of criminal liability for the individual or their employer in these circumstances. Note, too, that there is a legal obligation on test providers, which can include employers, to report “point of care” COVID test results to PHE.