Under current UK government guidance, any individuals with symptoms of COVID-19 are able to access a COVID-19 test through the NHS. There is currently no government guidance on the ability of businesses to compulsorily test their employees. What should employers be doing?

Should businesses be testing employees?

Businesses may want to test their employees to reduce the transmission of the virus and subsequently, minimise disruption to the business. Whilst this may be a legitimate reason for the implementation of compulsory testing, any measures put in place must strike an appropriate balance between reducing the risk of employees catching the virus and, the personal interests of employees. COVID tests are intrusive and uncomfortable. Many employees will not welcome testing in this way.

Compulsory testing in the workplace also comes with an administrative burden. Employers will have to privately fund the tests and also ensure that personal data is not mishandled.

Can a business make testing for Covid Compulsory?

Current Government guidance makes testing compulsory for those who display symptoms of the virus. Where an employee has symptoms it is therefore reasonable for a business to require that employee gets tested.

However, for those employees who do not have COVID symptoms, the answer is not so clear. Employees without symptoms are only likely to agree to being tested where other less intrusive methods have been used to try to prevent the transmission of the virus. For example, it is necessary to consider whether compulsory testing is a reasonable instruction if the employer has not yet implemented other measures such as social distancing and remote working.

Compulsory testing may however be reasonable if the nature of the work means employees work in close proximity to one another and the risk of them becoming infected with the virus is heightened.

The ability of a company to carry out compulsory testing on its employees will ultimately depend on whether employees consent to the testing. Employers should therefore consider putting measures in place to ensure that a positive test result will not have a harmful effect on employees and ensure there is no financial incentive to refusing a test.

What are the risks for an employer?

Discrimination

If individuals are targeted for testing on the basis of them being at a higher risk of contracting the virus, or, having worse symptoms, there is a risk that the business will be acting discriminatorily. Such individuals may fall into a certain protected group for example those above a certain age or, those with a disability.

However, if a business requires all employees to be tested, there is a risk that is may disproportionately affect employees in protected groups. Employers should, ensure that their approach to compulsory testing is fair and that any potentially discriminatory effects can be justified as a proportionate means of achieving a legitimate aim.

Data Protection

Businesses have obligations under the General Data Protection Regulation (GDPR) and the Data Protection Act. Data regarding health is considered to be in a special category and therefore requires the highest level of protection.  As a result, when processing health data, businesses must ensure they meet necessary conditions when processing it.

Businesses should be mindful of the following when collecting and storing data for the purposes of COVID testing:

DO NOT:

  • Collect more data than is necessary for the purpose of having a safe working environment.
  • Keep any public lists of those individuals who have been tested. Any lists should be kept confidential.
  • Name individuals who have received a positive test result. An employers duty in maintaining the health and safety of the workforce needs to be balance against an individuals right to privacy.

DO:

  • Be clear about what you are trying to achieve and whether it is necessary for you to obtain all of the information.
  • Consult the Information Commissioner’s office (ICO) guidance for businesses on managing their data protection obligations during the pandemic.

Overall, compulsory testing employees for COVID-19 can gives rise to a number of issues. Businesses need to consider the potential issues carefully before implementing any testing requirements, particularly if it will involve regular testing of those employees without symptoms.

Should employers be encouraging staff to be vaccinated? rad or article here.

14th January 2021

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