We set out guidance for employers on testing workers for Coronavirus in light of the recent extension of eligibility to be tested.

The government has made several different options available to employers for lateral flow testing in the workplace. Employers were originally given the option to register to receive free lateral flow tests for their employees to be conducted by employers on site. The deadline to register for this initial scheme was 31 March 2021.

The Government subsequently widened the options for employers, offering free lateral flow test kits for employers to provide employees to test at home to all businesses with 10 employees or more. Employers that wish to receive this free tests from late April must registered by 11.59pm on 12 April 2021. Employers can register for this scheme on the government website.

As the UK finds itself easing out of the third lockdown, regular testing is being introduced as a vital part of the roadmap to ease restrictions. From 9 April 2021 in addition to the schemes for employers, all individuals will be able to take a free rapid coronavirus (COVID-19) test twice a week. Details of this scheme can be found on the government website.

This is of course in addition to symptomatic testing, which remains a separate process, with advice and guidance available.

This significantly extends the amount of testing that can be done and means that this now falls squarely within employment relationships.

Testing workers for Coronavirus – Issues for employers

This significant move towards symptom free testing for all means that employers will have increasing access to tests and in turn test results. Whilst this is a key part of the reduction of transmission and a move that is widely welcomed, it is important for employers to realise that there are several legal issues connected with this.

How often should the test be undertaken?

Government advice now recommends that private-sector employers offer their workforce (who are on site) access to a minimum of 2 lateral flow tests every week. This will help identify staff who are carrying the virus without displaying symptoms, reducing the risk of transmission.

Tests conducted on site should be 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. Employers that cannot carry out testing on site can ask employees to carry out lateral flow tests at home, which can be provided by the employer from late April if they registered to receive these before the deadline of 12 April 2021 or can be accessed by employees personally via the general option for all individuals to access lateral flow tests from 9 April 2021.

ACAS guidance, Working safely during coronavirus includes a new section on testing which gives helpful guidance for employers on how to communicate the requirement to staff. The emphasis is on consultation with staff to address any concerns employees may have, for example that they may suffer reduced pay if required to self-isolate due to a positive lateral flow test, and how their health information will be processed.

Data Protection

The employee’s test results will contain health information. 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 test positive for 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. The Information Commissioner has published guidance for employers on this point which confirms the factors employers should consider and recommends an impact assessment is undertaken.

Disciplinary – What if an employee doesn’t wish to agree to testing

Whilst most employees displaying symptoms have tended to be happy to just go ahead and take the test if they are off sick, in particular, if they are receiving statutory sick pay (SSP), employees may be less willing to undertake regular symptom free tests.

Some employees may regard it as an unnecessary invasion of their privacy. The process of a throat and nose swab can be uncomfortable, and some employees may complain this is unnecessary when they are not displaying symptoms and other measures are in place to reduce transmission. Employers should therefore consider how they communicate this requirement to staff and how they will deal with employees that refuse to take advantage of the increased testing capacity.

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.

The employer may be in a stronger position where the workplace is one in which it is difficult to maintain social distancing, or there is particular risk of transmission to vulnerable individuals, for example in the care sector.

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 as this role is played by the track and trace service. 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. 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.

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.