Advice

An employer’s guide to workplace Covid testing

18 Jan 2021 By Lauren Brown

After the government announced plans to trial the rollout of rapid coronavirus testing by businesses, People Management asked experts how this might work in practice

Last week the government announced a push to start rapid Covid testing more people who don’t have symptoms, urging English local authorities to target people who are unable to work from home.

So far, 131 local authorities have signed up to community testing, with 107 already having started testing in their communities, according to the government’s website, and the Department of Health and Social Care added that NHS Test and Trace would be working closely with other government departments to scale up workforce testing.

Test and Trace is also working with several employers to pilot regular workplace testing. The government says 15 large organisations are already working through the scheme to test employees regularly across 64 sites, including organisations in the food, manufacturing, energy and retail sectors. Several public sector employers including job centres, transport networks and the military are also testing regularly.

An estimated 27,000 rapid tests have taken place across the public sector as part of pilots so far.

People Management spoke to HR and legal experts to make sense of asymptomatic testing across England and the potential impact on employers.

What is rapid testing and how is it different?

The government estimates between one in three and one in four people who have coronavirus never show any symptoms but could still be infectious. Rapid tests, also called lateral flow tests, take just 30 minutes to give a result and can help identify people with high levels of the virus who do not have symptoms. Previously, only people displaying symptoms were encouraged to book a test but, under this new scheme, asymptomatic individuals will also be asked to get tested.

How will it work?

The tests will be available in all 317 local authorities in England as part of NHS Test and Trace. It is up to local authorities to roll out the tests in their area; however, government guidance has asked them to prioritise those unable to work from home.

The most recent government guidance for employers says businesses are still free to set up their own testing programmes outside of Test and Trace. However, the government hopes this latest rollout will reach all workers unable to work from home, but advises employers to contact the relevant local authority if they are interested in getting involved. 

Can employers make testing mandatory?

Government guidance suggests this is up to the discretion of individual employers. However, Helen Frankland, associate solicitor at Slater Heelis, warns that there are risks to making testing mandatory.

“Depending on the nature of the workplace and the work undertaken, employers could insist that employees have a test, failing which they will dismiss,” she says. “Employers in this scenario would decide that they prefer to risk unfair dismissal claims rather than risk the safety of their staff, clients, patients etc. This would be a risky route to take.”

Where employees refuse to be tested, Frankland says communication is the best approach. “Employers should explain why testing is being requested and consult over the reasons as to why the employee is worried. Hopefully this should alleviate employees’ concerns so that they agree to taking a test,” she says.

Gemma Dale, lecturer at Liverpool Business School, also encourages employers to be sensitive to the fact that employees might be reluctant to take a test for many reasons, such as financial concerns if they were to test positive and forced to self-isolate.

Ultimately, what employers decide to do following the rollout announcement is their own decision to make. “What is needed in, for example, a healthcare setting may be very different from a school or a professional services firm,” Dale explains. “Some organisations already have their own testing processes established; many universities, among others, were making testing available to staff and students in the latter part of last year.

“It would be reasonable for employers that insist on tests to allow employees to attend during work time – but again this will be a decision for each individual organisation.”

What happens if an employee tests positive?

Jessica Foster, legal director at TLT, explains that, under the NHS Test and Trace scheme, if an employee tests positive, close contacts will be instructed to self-isolate, but the identity of the positive individual will be protected. It is a legal requirement to self-isolate if told to by NHS Test and Trace, and both employers and employees face fines for breaking these rules.

Where it is the employer testing, the employer needs to protect that person’s privacy when other employees are informed. “When it comes to data protection laws and communicating cases of Covid-19 with your workforce, the Information Commissioner’s Office has acknowledged the need for businesses to act quickly and adapt in light of the pandemic and says that data protection will not stop this,” Foster says.

Proportionality is key, she says: “You should have in place a process for notifying colleagues of a positive test result, so that appropriate measures can be taken. It is important to consider how much information you need to provide. The person’s name is not usually necessary information.”

But, Foster adds, an employee’s unwillingness to be named should not prohibit employers from notifying colleagues of a positive result, undertaking necessary risk assessments and cleaning and reminding staff of policies and where to find them.

Frankland also notes that rapid tests might produce false positives if not done properly. “This could result in employees being needlessly absent from work,” she says. “Employers will need to explore how the testing would be carried out and by whom, in order to ensure accurate results.”

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