The government is encouraging employers across all sectors to introduce workplace testing if they have staff who cannot work from home. There is no legal requirement for employers to implement testing, but there are many benefits for employers of doing so. Testing can provide confidence to staff and customers, help to protect the workforce and enable business continuity. There are, however, a number of practical and legal issues for employers to consider in order to implement safe and effective workplace testing, a summary of which we set out below.
What is workplace testing?
Workplace testing relies on rapid lateral flow antigen testing. For this test, a swab is usually taken from the back of the throat and nose. The test result will be visible around 30 minutes later. Lateral flow tests differ from the more sensitive polymerase chain reaction (PCR) tests that are usually conducted at test sites and are then analysed in a laboratory.
How do I access free COVID-19 tests?
All businesses in England are now able to sign up to the government’s free COVID-19 workplace testing programme. Businesses should register by 12 April 2021 to order free lateral flow tests to test their employees twice a week. These will be provided free of charge until the end of June 2021. To be eligible, a business must be registered in England and its “employees cannot work from home”.
Can I make workplace testing mandatory for my staff?
Making COVID-19 testing compulsory for staff carries with it a number of legal and practical risks.
There are a number of reasons why staff may not want to be tested. The test is invasive and, for some, uncomfortable. Further, employees may be reluctant to submit themselves to a test given that they and their household and any childcare or support bubble would have to self-isolate if they get a positive result (subject to the results of the follow-up PCR test). This could have a financial impact if those people are unable to work from home and any children would also not be able to attend nursery or school. Clearly, these are significant disincentives for an ostensibly healthy individual to take a test.
A mandatory testing policy may be discriminatory: there may be valid religious or medical reasons why an individual refuses to be tested, putting protected groups at a particular disadvantage. However, given the nature of lateral flow tests, such reasons will be limited and employers may be able to mitigate any discriminatory impact, such as exempting certain employees from having to take the tests.
Some employers may be able to objectively justify a potentially discriminatory mandatory policy given the health and safety objectives of workplace testing; however, such employers would need to show that testing was appropriate and proportionate relative to the risk of transmission in the workplace. Given the limitations of lateral flow testing and other precautions in place to prevent transmission in the workplace (such as social distancing, good hygiene, optimal ventilation, and wearing face masks), it is likely that many employers will be unable to objectively justify a mandatory testing policy. It is telling that the government has not yet made lateral flow testing compulsory even for patient-facing NHS or care workers or those who work in the education sector.
How can I encourage staff to participate in workplace testing?
Communications with staff will be critical in implementing effective workplace testing. Employers who sign up for free lateral flow tests will be provided with guidance on communications with their staff.
Employers are under a legal duty to consult with employees on matters concerning health and safety at work, including workplace testing. ACAS guidance recommends consulting with employees, either directly or with a recognised trade union or other employee representatives, before implementing workplace testing.
In most cases, the requirement to self-isolate will have a negative financial impact on an individual. To mitigate this impact, where employers are able, they may choose to offer full pay for any member of staff who is required to self-isolate following voluntary submission to lateral flow testing.
Employers may also choose to discount absence due to self-isolation (in circumstances where a person voluntarily submitted to workplace testing) for the purposes of any attendance management procedure (for example, where a certain level of absence triggers disciplinary proceedings).
To further encourage participation in workplace testing, employers should consider the practicalities of the testing process. For example, adjustments may be needed to start times, where employees are required to test before starting work. Additionally, consideration should be given to how tests may be conducted at work in a way that respects a person’s privacy and dignity. Allowing employees to carry out their tests at home could also be considered.
How do I implement workplace testing?
Government guidance says that employers should ensure that workplace testing is carried out in an appropriate setting where control measures are in place to manage the risk of COVID-19 transmission during the testing process. These include maintaining social distancing where possible, frequent cleaning, good hygiene and adequate ventilation.
From a risk management perspective, ideally staff would be tested on arrival at the workplace and then remain isolated from colleagues until they receive a negative test result (30 minutes later). Government guidance says that employers should ensure that an appropriate setting is available for individuals to wait in while their test is processed.
Clearly, if an employer wants to encourage staff to participate in workplace testing, they will need to ensure that staff are paid for any time engaged in the testing process. Employers should also ensure that they do not breach national minimum wage requirements, if staff are required to test outside of normal working hours. Employers should consult with staff before making any changes to working hours due to a requirement to test outside of normal working hours.
Where an employer cannot provide testing in the workplace and has 10 or more employees, they will be able to order tests for their employees to collect from their workplace and use at home twice a week.
What process will be followed if a member of staff receives a positive test result?
Clearly, as soon as an individual is known to test positive for COVID-19, they should be encouraged to minimise contact with others and to vacate the employer’s premises as soon as possible and to return home to self-isolate for 10 days. They will need to take a follow-up PCR test as soon as possible (within two days of the lateral flow test if it was an assisted test). Employers are encouraged to keep staff informed about potential or confirmed COVID-19 cases amongst colleagues, although on a no names basis. If a member of staff receives a positive test result, their employer is encouraged to contact Public Health England (PHE) and/or their local authority to seek guidance and to support contact tracing.
A person who receives a positive test result is under a legal obligation to immediately self-isolate for the period notified to them by NHS Test & Trace. They are also under an obligation to inform their employer if they are required to self-isolate, and the start and end dates of the isolation period. An employer who knowingly allows a worker to contravene their self-isolation is guilty of an offence and liable to a fixed penalty notice of £1,000, rising on a sliding scale to £10,000.
Could workplace testing increase the risk of transmission?
Employers will need to manage their communications with staff to avoid staff members who receive negative test results becoming complacent about adhering to other measures to limit transmission of COVID-19 in the workplace. Lateral flow tests are less accurate than PCR tests and, as such, lateral flow tests will not pick up all asymptomatic cases, meaning social distancing and other safeguards must remain in place.
It is also important to stress to employees that lateral flow tests should only be used if the employee is asymptomatic. If they have any symptoms of COVID-19 they must self-isolate and take a PCR test instead (even if the lateral flow test result was negative).
Are there any data protection issues to consider?
The ICO has issued guidance for employers who are planning to introduce testing. Data concerning health, such as a COVID-19 test result, is classed as special category data under the GDPR. Before starting testing, employers should conduct a data protection impact assessment. Employers will also need to identify and record the lawful bases for processing the test data. Employers should be transparent with staff about what data is being collected, what it is being used for and who it is shared with. Employee privacy notices should be updated to include details of the testing. Employers should ensure that test results are kept secure and confidential.
How important is a written policy?
Employers implementing workplace testing should introduce a clear, written workplace testing policy, which is communicated to all staff members, addressing the issues set out above. Employers should also update their COVID-19 risk assessment in accordance with Health & Safety Executive guidance.
Kerry Garcia
Sarah Taylor
Frances Rollin