We set out guidance for employers on testing workers for Coronavirus in light of the recent extension of eligibility to be tested.
It was announced on 28 April 2020 that all employees whose work cannot be done from home can now be tested for Coronavirus, if they have symptoms. They are able to make an application through an online portal and attend a drive-through venue to obtain testing. The government’s guidance “Coronavirus (COVID-19): getting tested” gives full details.
This significantly extends the amount of testing that can be done and means that this now falls squarely within many employment relationships.
Others eligible for testing
The others who can be tested are:
- all essential workers including NHS and social care workers with symptoms;
- anyone over 65 with symptoms;
- anyone with symptoms whose work cannot be done from home (for example, construction workers, shop workers, emergency plumbers and delivery drivers);
- anyone who has symptoms of Covid-19 and lives with those identified above
Additionally, the following can be tested even if they do not have symptoms:
- social care workers and residents in care homes (with or without symptoms)
- NHS workers and patients without symptoms, in line with NHS England guidance.
Testing workers for Coronavirus – Issues for employers
This significant move means that you may have employees self-isolating with COVID-19 symptoms or have a household member that is doing so. Therefore, as a manager or HR professional you may be keen to ensure that they are tested as soon as possible so as to ensure they get back to work as soon as possible or to manage the risk in the rest of the workforce. However, it is important for employers to realise that there are several issues with this.
1. Data Protection
The employee will receive an email after the test confirming their status. This will be special category data (sensitive personal data in old data protection terms) because it is medical information. You therefore need to treat this very securely and safely. You need to comply with all of the high levels of requirements for the data protection act.
As an employer, you can ask employees to notify you if they are diagnosed with COVID-19. This processing of health data can be justified under the GDPR as being necessary to comply with employment and social protection law obligations or where it is necessary for reasons of public interest in the area of public health.
2. Disciplinary – What if an employee doesn’t wish to agree to testing
The contract of employment is unlikely to contain a contractual basis entitling the employer to require the employee to be tested. Therefore, you can request an employee to undergo testing but you can’t compel them to do this. However, given the extent of these unprecedented circumstances, the implied duty of trust and confidence and your obligations to ensure the health and safety of employees under the Health and Safety at Work Act 1974, it would arguably be a reasonable management instruction. You should be aware of their obligations under this Act, which continue to apply even during the lockdown. Therefore, as you have a duty to ensure, so far as is reasonably practicable, the health, safety and welfare of all employees, you may in fact risk breaching your own implied duty of mutual trust and confidence by not requesting employees to take a test if necessary.
It is important to note that the employee also has an implied duty of trust and confidence which may be invoked by these circumstances. An employee who refuses to comply would therefore not only potentially be in breach of a reasonable management instruction, but could breach their duty of mutual trust and confidence by failing to comply with their obligations under the Health and Safety at Work Act 1974. Therefore, the way in which you could require employees to take a test would be by initiating a disciplinary process.
You would hope that many employees will just go ahead and take the test if they are off sick, in particular, if they are receiving statutory sick pay (SSP).
3. Notifying other colleagues
At the moment there is no obligation on an employer to let other employees know that they may have been in contact with someone with COVID-19. In particular, there is no obligation to let customers or clients know. However, it probably is the moral thing to do and you need to put a communication plan in place when dealing with this situation. This communication plan would need to protect the sensitive personal data of the individual outlined above, whilst ensuring that any infected individuals feel comfortable reporting this type of information. Further, the plan would need to be structured in such a way so as to avoid colleagues asking intrusive questions of the infected individual or drawing any potentially discriminatory inferences regarding, for example, nationality or other protected characteristics.
The fact that the testing has now been made so much more widely available really changes the ability for employees and employers to know whether they have COVID-19. This means that people may have suspected they had COVID-19 before but it was impossible to tell whether they had had it or not other than being hospitalised. Now, it is going to be much more likely that you will have workers in your workforce who have positive COVID-19 tests and you need to think about how you are going to deal with that information. It is both special category data and also arguably in the interests of other colleagues, contacts and clients.
However, it is important to remember that the testing now more widely available is an antigen test. Put simply, this tests whether someone currently has the virus. However, it could be that a significant proportion of your workforce have already had COVID-19 or may even be immune to it, or are not displaying symptoms. The test to tell if you have ever had Coronavirus, or have the antibodies in which to fight it, is an antibody test, of which widespread and certified testing is not yet available from the government. Until antibody testing is more widely available, it will be difficult for you to gain a complete and accurate representation of the spread of Coronavirus within your workforce over time.
If you would like further information in relation to the above, please contact a member of the Employment team.
Our page “Coronavirus – Legal advice and guidance” is continually being updated as new/updated guidance comes through from the government and other regulatory bodies on all Coronavirus related issues. If you would like to receive email notification as and when this page is updated or new guidance added just complete the simple registration form on the page.
This blog was co-written by Adam Wheal, trainee solicitor and Claire Merritt, partner.