Scrase Law Employment Solicitors

Rapid workplace testing programme expanded

On 7 February, the Government announced a drive to increase workplace testing in sectors open during lockdown, to detect coronavirus in people who are not showing symptoms.

Extension of rapid workplace testing programme

According to the government announcement, around one in three people who have coronavirus have no symptoms and may be unknowingly spreading the virus.  The aim of rapid testing is to find more positive cases, and keep workers who cannot work from home from unknowingly passing on the virus.

Businesses with more than 50 employees can now register for the workplace rapid testing programme where employees cannot work from home.  This was originally restricted to businesses with more than 250 employees.  An online portal has been launched for employers.  Rapid tests were previously being provided for free until at least 31 March.  On 22 February, the Government published a four-stage roadmap out of lockdown in England.  This states that the offer of free test kits to workplaces for staff who cannot work from home will be extended until the end of June 2021.  Businesses will have to register interest before 31 March.   The Covid secure guidelines have been updated to refer to rapid workplace testing and the online portal. 

The Health Secretary, Matt Hancock, has stated that “employers should regularly test their staff”.  However, what factors should employers bear in mind when considering workplace testing?

Workplace testing – government guidance for employers

Government guidance on testing for employers was published before the announcement of the extension of rapid workplace testing programme.  That guidance sets out a number of factors that employers should consider before deciding whether to put a testing programme in place.  These include:

  • Who the testing will cover
  • How often staff will be tested
  • The appropriate facilities for carrying out the tests
  • What arrangements will be made for any individual who does not wish to be tested
  • How the employer will use test results
  • The compatibility of the programme with the employer’s legal responsibilities including in relation to health and safety, equality, data protection and employment law.

It also strongly advises employers to communicate clear information to employees on why they are setting up a testing programme, whether it is voluntary or mandatory, what the consequences are for those who decline testing, and what the next steps are after they receive the result.  The guidance strongly advises employers to consult with their staff associations or unions ahead of developing and implementing any policy.

Government stay at home guidance explains the obligations on self-isolation following positive tests.  In summary, if an employee tests positive after a rapid lateral flow test, they must self-isolate and arrange an NHS (PCR) test.  If that test is positive, they must continue to self-isolate. 

What if an employee refuses?

Employers may be considering workplace testing in light of their obligation to ensure the health and safety of their workforce.  However, this should be considered carefully in liaison with the employer’s health and safety department or advisers, as part of their overall health and safety risk assessment. 

An employer can ask employees to be tested, but cannot force them to agree.  Employees may feel that testing is intrusive, especially if they are not displaying symptoms or if there are other ways of limiting the risk of transmission within the workplace.  ACAS guidance states that if the employer decides to operate workplace testing, this should be agreed with staff or with a recognised union and the agreement should be put in writing.  ACAS suggest that this could be done via a workplace policy.

If the employee refuses to be tested, ACAS guidance states that the employer should listen to their concerns and try to find ways to resolve any issues.  However, it goes on to state that if an employee unreasonably refuses, this could result in disciplinary action.  Although this appears to support the taking of disciplinary action in certain cases, employers considering this route should first seek legal advice based on the particular facts and circumstances involved.

Workplace testing – data protection issues

The Information Commissioners Office (ICO) has also issued guidance on the data protection issues involved in workplace testing.  Information relating to health is “special category data” and it is important for employers to be aware of and comply with their data protection obligations. 

The ICO reminds employers that if they are going to begin testing, they should conduct a Data Protection Impact assessment that focuses on the new areas of risk.  When considering whether to introduce workplace testing, which involves processing personal data, the ICO recommends the employer asking itself a number of questions, including:

  • Do you really need the information?
  • Will these steps actually help you provide a safe environment?
  • Could you achieve the same result without collecting personal information, in particular, without health information?

Employers will need to assess the lawful basis on which they are processing the data.  The ICO suggests the lawful bases that are likely to apply, but all employers must make their own assessments.

Employers who decide to conduct workplace testing should have clear privacy information in place for employees letting them know, for example, what data the employer requires, what it will be used for, who it will be shared with and how long it will be retained.

Comment

As ever, government guidance does not replace the need for employers to seek independent legal advice or supersede existing legal obligations, including those relating to health and safety, employment law, data protection, or equality.

It is also important to remember that employers must continue to follow the Covid secure guidance, even if their employees have either received a recent negative test result as a result of workplace testing; or had the vaccine (either one or two doses).

Workplace testing – useful sources of information:

Coronavirus testing: guidance for employers

Government boost to rapid workplace testing

Working safely during Coronavirus guidance

Stay at home guidance

ACAS: working safely during coronavirus

ICO: testing guidance

23 February 2021

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©2021 SCRASE LAW LTD. THIS POST IS FOR GENERAL INFORMATION ONLY AND IS NOT ADVICE. YOU ARE RECOMMENDED TO SEEK COMPETENT PROFESSIONAL ADVICE BEFORE TAKING ANY ACTION ON THE BASIS OF THIS POST