There’s no law that says staff must be tested for coronavirus (COVID-19), but some employers might want to bring in testing as part of their workplace policy.
If you want to test your staff for COVID-19, there are a number of important legal issues which you must consider before implementing a workplace COVID-19 testing policy:
Employers need their employees’ agreement to being tested. Agreement is critical as any attempt to test employees without their agreement could be an assault.
The first step is to consult with your employees about how testing would be carried out, how employees would get their test results, the process to follow if someone tests positive for COVID-19, how someone’s absence would be recorded if they need to take time off work, how testing data will be used, stored and deleted, in line with data protection law (UK GDPR).
Once you have consulted with your staff and provided you have reached an agreement, you should put in place a COVID-19 testing policy setting out the process to be followed.
The policy should explain why you are asking employees to be tested along with the benefits. This should cover why you have decided testing is appropriate and what expectations you have of your employees both in testing and compliance with other safety measures. You should also update your workplace risk assessments.
If you cannot reach agreement with staff, it’s a good idea to get legal advice before bringing in a workplace testing policy.
2.Protecting personal data
COVID-19 testing data confirming negative or positive virus testing is special category (or sensitive) data because it is medical information. If you do carry out testing you need to store and process the data in accordance with the Data Protection Act 2018 and the GDPR.
Before conducting any testing programme, you will need to conduct a data protection impact assessment (DPIA). The DPIA should consider why such processing is needed and what policies or information about the processing need to be shared with employees.
The Information Commissioner’s Office (ICO) has released guidance for employers on carrying out workplace testing which can be found here:
The guidance makes is clear that transparency with staff is very important. As an employer, you should be clear, open and honest with employees and contractors from the start about how and why you need to process their personal data. This is crucial when processing health information. If you are testing employees or contractors for COVID-19 or checking for symptoms, you should be clear about what decisions you will make with that information.
To help ensure transparency in the need for testing, you should include in your COVID-19 testing policy how personal data will be processed, including:
- processing all data fairly and transparently
- ensuring staff are aware of the personal data required and what it’s used for
- explaining who data is shared with
- making employees aware of how long data will be kept.
More information for employers on data protection law can also be found at:
3.Employee concerns about testing
You may find that some of your employees may not want to get tested because they’re worried that if they test positive they will get paid less for being off work, or will get treated differently.
To help reassure your employees about being tested, you could consider changing the way you deal with time off after testing positive for COVID-19. For example:
- keeping staff on their usual rate of pay instead of just paying them sick pay during their period of isolation if they cannot work from home
- not counting the time off in their absence record or towards any ‘trigger’ system you may have in your attendance management policy.
4.Resolving issues about staff testing
If someone does not agree to be tested, you should listen to their concerns. It’s important to be flexible and try to find ways to resolve any issues.
It can help to talk to the employee about:
- the reason why they do not want to get tested
- what might help resolve the issue
- any other options that mean the employee would not need to get tested, for example if they’re able to work from home
Ultimately, a testing programme may reduce the risk of a workplace outbreak but protecting the health and safety of employees, and the views of the employees themselves needs to be carefully balanced.
If you would like further advice or assistance, please contact us at firstname.lastname@example.org or call us on 03300 414589.
DISCLAIMER: The article is provided for general information purposes only and does not constitute legal or other professional advice. While the information is considered to be true and correct at the date of publication, changes in circumstances may impact the accuracy and validity of the information. EffectiveHRM is not responsible for any errors or omissions, or for any action or decision taken as a result of using the guidance.