On 26 February the government updated its guidance to employers (and third parties) on carrying out workplace COVID testing. This will now be more relevant than ever to employers across the UK, now that access to free workplace testing has been expanded to all businesses.
The guidance makes it clear that workplace testing regimes should not be used for employees with COVID symptoms – they should not come to work and should instead self-isolate and arrange for a PCR test. It also makes it clear that although they very much encourage businesses to implement regular testing programmes, it’s entirely up to the employer as to whether they choose to do so.
The guidance also warns that even the most comprehensive workplace testing schemes should not detract from existing COVID-secure workplace arrangements. There is a real danger that regular testing will give rise to complacency and employers must be alert to this.
Deviation from the measures they have put in place to ensure their workplace is COVID-secure can take hold very quickly and, in addition to the threat that this could lead to workplace outbreaks of the virus (the lateral flow tests are not as reliable at picking up infections), they can also leave employers vulnerable to employees raising whistleblowing and Health & Safety claims.
If employers want to introduce workforce testing, they have three options:
If using a third-party provider, employers should use an accredited provider (a list of accredited providers is published by the government and updated regularly). The employer may want the third-party to carry out the testing on their site, in which case they can still order free test kits but would have to pay the third-party to deliver the testing service.
If employers are unable to carry out testing on-site, they can access testing through their local community testing centre. The guidance does not cover employees testing at home although this is now being rolled out widely in some sectors and to school children and their families.
It may be that some employers may decide not to implement a testing programme themselves but will want to require employees to inform them when they take a test and record that result. The government guide does not cover this scenario.
The guidance on employer-led testing covers the following areas:
The government and the Information Commissioner’s Office (ICO) guidance has repeatedly stressed the need for transparency when communicating with employees on the issue of testing and employers are “strongly advised” that this should be done “ahead of developing and implementing any policy”. Employees should be given clear information on:
The government recommends that employers offer their on-site employees access to a minimum of two lateral flow tests every week. They stress the importance of communicating to employees the purpose and outcome of testing. The government has a guidebook on setting up testing sites and employers should consider factors such as the number of booths required, employee’s privacy needs, the participant arrival area, a zone (or zones) for participants to collect their swab sample and test and a zone (or zones) where participants samples are received and analysed. Once the employer has registered using the online portal by entering their contact details, company name and company registration number, they will be given access to the Egress platform and free test kits can be ordered through this. Once received, the test kits must be stored between 2˚C and 30˚C (between 15˚C and 30˚C when used for testing and sample processing). The tests have a shelf life of 24 months from the date of manufacture.
Employees should enter their personal details and test kit barcode each time they are tested here. They can set up an account to save their details for recording future tests, which the guidance states can take up to 15 minutes. Participants are encouraged to use their own mobile devices for the registration process. Test results are sent to the participant via SMS and/or email and will be communicated within a day of the test. The guidance makes it clear that participants are not legally required to share the results with their employer, but they are required to inform them of a positive test.
The guidance states that employers are: “encouraged to keep staff informed about potential or confirmed COVID-19 cases among their colleagues. However, they should not name individuals, and should not unlawfully share anyone’s personal data (including anyone’s test results). The ICO is clear that data protection law does not prevent an employer, ensuring the health and safety of their staff. It should not be viewed as a barrier to sharing data with authorities for public health purposes when necessary and proportionate, such as working with the NHS Test and Trace service.”
Employers should report positive results to Public Health England (PHE) and are also required to report any adverse incidents regarding testing to the Medicines and Healthcare Products Regulatory Agency (MHRA).
As COVID tests results are special category date, there are significant data protection issues surrounding undertaking testing, recording, disclosing and sharing the results. Employers will need to establish the business need for doing so, show that processing the data is necessary to achieve this and weighing this up against the impact on the individual. The Information Commissioner’s Office has published guidance for employers which can be found here .
Employers can use the test results to identify individuals in their workforce who have COVID and who are legally required to self-isolate. However, the guidance warns that employers “must ensure that any lists of members of staff made from collecting their sensitive health data, including their test results, do not result in any unfair or harmful treatment of workers.” It goes on to add “It would also not be fair to use, or retain, information for purposes staff members were not told about or would not reasonably expect.”
It’s important to note that this guidance refers to offering employees access to the tests. There is nothing in it which supports a mandatory approach. However, there is no doubt some employers will be looking to introduce this if it has been identified as a necessary measure to help control the risk of COVID in their workplace.
It’s always advisable to take advice on the risks and implications of introducing a testing policy in your workplace. For advice and guidance from our team and experts, call our 24/7 advice line on 0345 844 4848.