As lockdown eases, employers are considering how to make workplaces safe as their staff return. As part of new measures to address the risk of Covid-19 transmission, some are intending to ask staff to take tests for the virus now that kits are readily available for purchase. But to what extent is the testing of staff lawful, and are there any risks employers should consider?
Is testing necessary and proportionate?
Offering voluntary Covid-19 testing to staff, in conjunction with other safety measures, is likely to reassure employees that the workplace is safe. Test results are, however, classed as ‘special category data’, so employers must use and store this sensitive data in accordance with the General Data Protection Regulation (GDPR). The Information Commissioner's Office published guidance on testing and surveillance during the pandemic, which explains that, in order to be compliant with data protection law, employers must show their approach to testing is “reasonable, fair and proportionate to the circumstances”. To ascertain if this is the case, businesses should consider:
- their organisation’s specific circumstances (including type of work undertaken and nature of their premises);
- the extent to which testing will contribute to a safe working environment (for example, the timing and accuracy of the test results); and
- whether alternative measures could be as effective in limiting transmission of Covid-19 (such as strict social distancing or working from home).
If there is good reason for testing, given the sensitive nature of the data collected, employers must process the data in accordance with the GDPR and inform staff on why and how they intend to use it.
Is individual consent required?
The testing process for Covid-19 can be invasive and uncomfortable, requiring a swab to be taken from inside the nose and back of the throat. Many employees may willingly undertake testing to limit the risk of an outbreak in their workplace, but individual consent is required to conduct each test.
Can businesses make testing mandatory?
Government guidance requires anyone with Covid-19 symptoms to arrange a test. As employers have a duty to protect the health and safety of their employees, it is likely that they can reasonably instruct an employee exhibiting symptoms to be tested. If the employee tests positive, the employer will be alerted to the risk of transmission at the workplace and can take action to mitigate that risk. If the employee fails to follow the employer’s instruction to arrange a test, the employer may be justified in taking disciplinary action against them.
However, it may not be reasonable for the employer to require an employee to be tested if they are not exhibiting symptoms (for example, as part of a routine testing programme to identify possible asymptomatic cases). Whether testing is reasonable in these circumstances will depend on the extent to which the risk of Covid-19 cannot be managed in the workplace by other measures, such as social distancing and remote working.
Where testing is considered necessary and proportionate, businesses may seek to make testing a contractual obligation. If the obligation to be tested is validly incorporated into the employee’s contract, failure to comply would be a breach, which may entitle the employer to take disciplinary action.
Can an employer sanction an employee for refusing?
Before taking disciplinary action for refusal to consent to testing, an employer must consider the employee’s individual circumstances and any mitigating factors, as individuals may have valid reasons for refusing to be tested. The requirement to be tested could also disproportionately affect some protected groups, such as those with certain disabilities.
How to encourage voluntary testing
Ideally, businesses wishing to implement routine testing of their workforce will do so with the consent of their staff. Employees are more likely to consent if they have confidence that their employer will handle personal data sensitively and securely, and if they believe they won’t suffer financially if they test positive. To address this, employers should consider extending company sick pay to employees who test positive and are required to self-isolate (if they cannot work from home) or maintain those employees on their normal pay.
Ultimately, to ensure employee testing is handled correctly, communication is key. By emphasising that testing is a necessary and proportionate means of limiting a Covid-19 outbreak in the workplace, which could result in its closure and threaten jobs and livelihoods, employers should be able to garner support for a testing programme.
Lloyd Davey is a partner and Sarah Taylor a senior associate at Stevens & Bolton