In depth

COVID-19: employer testing in the workplace

Gateley Legal

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As the NHS Test and Trace system comes under increasing pressure the Government has issued guidance on how employers can best operate their own testing procedures for staff.

There is no obligation for employers to put in place testing, but it is recognised that some may feel that it will help provide confidence to employees and customers in the workplace and may even help to protect business continuity.

Your questions answered 

  1. What tests does the guidance cover?

    Two categories of tests are covered in the Government guidance virus tests and antibody tests.

  2.  What is the difference between these tests?

    A virus test will identify whether somebody has COVID-19 at that moment. If a member of staff tests positive, they should immediately self-isolate for ten days. This will be from the point of developing symptoms or from the date of the test if they do not.

    An antibody test looks for the presence of antibodies which have been produced by people with the virus to counteract against the COVID-19 virus. A positive result indicates the person has previously had the virus but does not indicate immunity to COVID-19 infection. However, there is no strong evidence to suggest that those who have antibodies have developed long-lasting immunity which would prevent them from getting the virus again.

  3. What about temperature testing?

    The guidance does not cover temperature checks or the use of thermal cameras as a means of testing staff. This is due to the findings of the Medicines and Healthcare Products Regulatory Agency which has said that there is little scientific evidence to support temperature screening as a reliable method for detection of COVID-19. 
     

  4. What do we need to tell employees?

    Clearly, the intention to introduce testing will need to be communicated to staff. Transparency is very important when outlining the decision to develop and implement a virus or antibody testing programme.

    If there is a staff association or union, they should be consulted ahead of implementing any policy.

    Employees should be told why a testing programme is being established and whether the programme is voluntary or mandatory. If it is mandatory the consequences for staff who decline to take part in the testing programme will need to be explained. 
     

  5. What about processing the test results?

    Staff will also need to know what happens when the results are received. If any employees have concerns, they should be given an opportunity to discuss these with management. The Information Commissioner's Office (ICO) has set out specific points on GPDR and the Data Protection Act 2018.

    To comply with the GDPR and the Data Protection Act 2018 employers must process all data lawfully, fairly and transparently.

    This will mean as a minimum ensuring staff are aware of what personal data is required, what it will be used for, and who it will be shared with and how long it will be kept.
     

  6. Can we use any test kits?

    Employers must make sure that the test kit they or their provider is procuring is legal in the UK either through having the CE mark or an exemption. Tests without a CE mark are not legally allowed to be placed on the EU and UK markets. 

  7. How is testing carried out in practice?

    Samples may be collected at a ‘point of care test’ by a healthcare professional in a medical or laboratory setting, or they can be obtained through and self-administered/assisted sampling tests.

    When collecting results, all medical practitioners have a statutory duty to report positive results of COVID-19 virus tests under the Public Health (Control of Disease) Act 1984 and the Health Protection (Notification) Regulations 2010.

    It follows that if a member of staff has a positive virus test result, employers and third-party healthcare providers should ensure that Public Health England is notified. 

  8. What if there is more than one positive result?

    If an employer identifies that there is more than one case of COVID-19 on their premises, they must contact their local Health Protection Team to report the suspected outbreak.
     

  9. Can we develop our own trace system to warn contacts of employees?

    This can be done in addition to NHS Test and Trace. However, it should be taken into account how this impacts employee rights such as Statutory Sick Pay. An individual who has been identified as a contact by an internal contact tracing system but is not defined as a contact by the NHS Test and Trace service does not qualify for Statutory Sick Pay. If an employer decides to keep the employee away from the workplace the employer, where possible, should arrange for the member of staff to continue to work from home. If working from home is not possible the employer may have to keep them on full pay, unless their contract of employment provides otherwise. If an individual is contacted by NHS Test and Trace as well, they will be eligible for Statutory Sick Pay (if they meet the other eligibility criteria) from the day that NHS Test and Trace has told them to self-isolate.

    Employers should not attempt to trace any contacts beyond the workplace but should refer these cases to the local Health Protection Team.

  10. How do we communicate results to the employee tested?

    It is a legal obligation for employers and their third-party healthcare provider to directly share all results from both virus and antibody tests with a member of staff who asks to see them. An employee may agree to have their results transmitted to their employer first or at the same time as they receive them.

    If results are being communicated via text message or app, it is strongly encouraged for a healthcare professional or a person owing a similar duty of confidentiality to be accessible to members of staff to discuss the results.

  11. Do we tell staff there has been a positive virus test case to the workforce?

    The guidance encourages employers to keep staff informed about potential or confirmed COVID-19 cases amongst their colleagues. However, they should not name individuals, and should not unlawfully share anyone's personal data including anyone's test results.

    The ICO is clear that data protection law doesn't prevent an employer ensuring the health and safety of their staff. It should not be viewed as a barrier to sharing data with authorities for public health purposes when necessary and proportionate, such as working with the NHS Test and Trace service. 
     

  12. For what purposes can the employer use the test results?

    Employers can use virus test results to understand who in their workforce currently has COVID-19 and who needs to isolate following a positive COVID-19 virus test.

    They can also use antibody test results to understand the percentage of their workforce that has already potentially had COVID-19.

    However, an employer must ensure that any lists of members of staff made from collecting their sensitive health data, including their test results, do not result in any unfair or harmful treatment of employees. 

    It would also not be fair to use or retain, information for purposes staff members were not told about or would not reasonably expect.

For more information regarding the guidance on how employers can best operate their own testing procedures for staff, contact our expert listed below and for more information regarding COVID-19 visit our Coronavirus hub. 

More information

For more information regarding the guidance on how employers can best operate their own testing procedures for staff, contact our expert listed below and for more information regarding COVID-19 visit our Coronavirus hub. 

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