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Will workplace testing become mandatory? And how should HR approach it?

10 Sep 2020 By Elizabeth Howlett

People Management asks experts for advice on key areas, including how much tests cost, what to do if an employee refuses and GDPR implications 

Prime minister Boris Johnson yesterday (9 September) suggested mass coronavirus testing could be the answer to getting people back to some semblance of normality. Announcing the ‘Operation Moonshot’ plan, Johnson said the government was pinning its hopes on “new types of test that are simple, quick and scalable” and which “use swabs or saliva and can turn round results in 90 or even 20 minutes”. He said he wanted to start using testing "to identify people who are negative... so we can allow them to behave in a more normal way”.

It’s also been reported that the UK government may begin to urge companies to launch regular workplace Covid-19 testing, with meetings between business leaders and Whitehall officials on the deployment of mobile testing units to offices and factories around the country rumoured to have taken place over recent weeks. Some employers could apparently be allowed to stay open even if there are fresh local lockdowns in their area if they are conducting regular testing of staff.

Yet only 1 per cent of employers responding to People Management’s recent return to the office survey had plans to implement regular testing. So what does HR need to know to get up to speed? Should they be considering workplace testing regardless of government dictates? And if so, what’s the best way of rolling this out?

Who is already testing?

Only a small handful of employers are currently stumping up the money for costly tests, according to the Financial Times, which revealed Formula One, the Premier League and some City of London employers have introduced regular testing. 

Rachel Suff, senior policy adviser at the CIPD, adds that, if currently unable to justify the cost of workplace testing themselves, employers can refer essential workers for testing if they are self-isolating because either they or members of their household have coronavirus symptoms. “The government has detailed guidance on getting tested; arrangements vary between England, Wales, Scotland and Northern Ireland for staff working in care homes, for example. Other workers are tested if they have symptoms or are contacted by NHS Test and Trace,” she explains. 

What kits are available and how much are they?

Paul Avis, strategic proposition director at Canada Life, advises that current testing methods range in price, with the choice depending entirely of course on a company's budget. “The range of costs for testing I have seen starts from free, especially trial period offers on apps, to £400 per person,” he explains. “These range from onsite swab testing and waiting (such as Bupa's antibody test, which is £65 per test), nurse helplines for £3 per employee per month, right through to inexpensive apps – many of which have been clinically reviewed or academically validated.”

Bupa adds it generally recommends antigen tests for companies looking to bring colleagues back, as these ascertain whether someone currently has the virus, rather than just whether they’ve had it previously, as with antibody tests. Bupa's antigen test is currently available for business customers only and the price varies.

Experts have warned the technology for the more rapid, Operation Moonshot tests Johnson referred to in his briefing yesterday "does not, as yet, exist".

Could workplace testing become mandatory?

The answer to this is still unknown, according to Kate Palmer, associate director of advisory at Peninsula. “That said, as we head into the winter months, the government will likely be exploring several ways to keep infection rates down in the UK, which may involve stricter enforcement of testing,” she says.

What if an employee refuses?

The choice of the employee to be tested or not has to be taken seriously regardless of whether testing becomes obligatory, warns Avis. While employers have a responsibility under the Health and Safety at Work Act 1974 to keep all employees safe, and while testing could be mandatory in relation to the government’s “UK-wide population approach, which would have to be legislated for”, it would be “far harder for an employer to insist on it”, he says.

If an employee is not showing symptoms “it may not be considered a reasonable request to expect them to get a test frequently or to seek to discipline them if they refuse”, agrees Palmer. “Instead, it is advisable to always consider any mitigating factors behind their refusal; for example, the employee could have a disability, such as a mental health impairment that may make them more nervous at the prospect of a positive test result, meaning the employer could be discriminating against them if they are disciplined as a result of not wanting it.

“It is also essential to watch out for bullying behaviour as a result of an employee not wanting to get tested. Their colleagues may not react well to this and, if left unchecked, it could lead to further issues.”

Avis adds that the same would apply in the case of a vaccine being developed: “Once again, mandatory provision would be hard to enforce as other cases, such as the flu vaccine, are optional and targeted at the most vulnerable.”

Should firms roll out testing even if not mandatory?

Vicky Walker, head of people at Westfield Health, says “supplementing Covid-safe workplace practices such as social distancing, ventilation and one-way systems with regular testing can help reassure employees, reduce the risk to physical health and the impact on mental health, while supporting economic recovery”.

Avis argues that while larger businesses are more likely to introduce testing, “smaller employers, especially those with high-net-worth individuals such as hedge funds, have also got a vested interest and clear business case for keeping their workforces healthy and productive”.

How often should employees be tested?

Avis points out that “it is important to recognise that testing is a one-off and, as people come into contact with others, for instance socially or shopping, then further, ongoing testing would be needed”. He reminds that one of the “clearest aspects” of Covid contagion is that the longer you spend with an infected person, the higher the likelihood of transmission becomes, but that different workplaces pose different risk levels. 

“In the workplace you probably spend more time with colleagues than anyone, other than your family, and so a routine testing approach is recommended but not guaranteed,” he says. “Certain industries, such as food production or processing, have been especially badly hit. Therefore, where refrigeration is taking place, more routine testing is probably required than in, say, an organisation where there are grounds people working, often in an isolated way.” 

Routine testing would be sensible in most circumstances given the potential 14-day incubation period, he says. But, he adds: “There are clear cost implications for employers as much as logistical considerations, alongside how you ‘police’ any testing policy introduced.”

What if an employee tests positive?

Organisations will need to act “swiftly and closely to follow government guidelines on cleaning the workspace, while taking appropriate measures to reassure and protect other employees,” says Walker. “Developing scenario plans and template communications for different testing scenarios is a great way to make sure you can respond in a timely and appropriate way, minimising stress levels for everyone involved.”

She highlights the need for clear and reassuring comms: “If an unannounced deep clean is taking place in the workplace, it could create panic and anxiety. Simply communicating to employees what is happening and why will create the trust and openness needed to keep people safe and feeling confident to stay at work.”

Suff says employers may wish to keep the media out of it and “instruct employees to not talk about any cases” with them. “Instead employers, employees and the community as a whole need to work together to minimise the virus spread,” she says. “If there is more than one case of Covid-19 in a workplace, employers should contact their local health protection team to report the suspected outbreak.”

What are the GDPR implications of testing?

“It is important to remember that testing involves the taking and storing of employee personal health data, which is classed as highly sensitive ‘special category’ personal data under the GDPR,” explains Palmer, who as such urges employers to ensure they’re processing this data lawfully. 

“For example, one of the ways to [do this] is to demonstrate it is in the public interest to do so,” she says. “Employers will need to make sure they do not collect more data than is necessary, retain the confidentiality of who has been tested and avoid naming positive tests to colleagues as much as is possible. To give another example, it is likely not to be necessary to inform an employee that someone on a different floor to them has tested positive, but it may be if they sit next to them.”

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