Since 16 August 2021 individuals are no longer required to self-isolate if they have received both doses of the COVID-19 vaccination, which means employers are considering alternative precautions they can put in place instead of self-isolation to ensure the safety of their staff in the workplace environment, especially those that may be clinically extremely vulnerable.
One question which we have been asked by a number of our clients is whether they can introduce a policy of regular COVID-19 testing. The Department of Health and Social Care are encouraging as many employers as possible to sign up to regular testing of their staff. However, such a policy may give rise to a number of legal and practical issues, especially where employers are wishing to make testing mandatory or a condition of attendance in the workplace. We explore some of the issues in more detail below.
Reasonableness of Testing
Employers will need to be able to justify the implementation of testing as a condition of access to the workplace in order to demonstrate that they have acted reasonably in implementing this policy. If the policy is not reasonable then employers will find it will be very difficult to enforce.
The benefits of introducing workplace testing are clear, for example reducing the risk of an outbreak of coronavirus, minimising disruption to the business, early identification of cases, and to protect the health and safety of staff. However, these benefits will need to be balanced against the personal interests of an employee (e.g. the pain, discomfort and invasiveness of testing or the financial effect on someone who may still need to self-isolate) as employees may view this requirement as an invasion of their privacy.
On introducing mandatory testing, employers will also need to be able to demonstrate that they have considered whether they are able to manage the risk of transmission of COVID-19 in the workplace through other means such as social distancing, remote working or face masks. If the employer considers that the risk cannot be managed by other means, then mandatory testing may be considered a reasonable precaution.
Discrimination Issues
There may be valid religious or medical reasons why an individual would not want to be tested and testing may put groups of individuals with a protected characteristic at a disadvantage (for example if an individual suffers from anxiety and testing heightens that fear). Employers would need to consider whether there are ways of mitigating any potential discriminatory effects (such as exempting certain employees) however, these would need to be considered on a case by case basis.
Data Protection
Data relating to the results of a COVID-19 test will be health data and therefore “special category data” under UK GDPR. Employers will therefore need to ensure that they have a lawful basis for processing the data under Article 6 UK GDPR (e.g. legitimate interests) and a lawful basis under Article 9 UK GDPR such as employment (Article 9(2)(b)) and public health (if they intend to report the results to the relevant public health contact tracing authorities in order to stop the spread of the virus) (Article 9(2)(i)).
Data protection law only allows organisations to collect information that is “adequate, relevant and limited to what is necessary” in relation to the purposes for which the data is processed. Employers will therefore need to be sure that testing employees and collecting this health data is “necessary” and considerations such as the type of work the employee undertakes, the type of premises they work and what other health protection measures the employer has in place .
Employers will also need to ensure that they are transparent with the employees about testing and provide them with certain relevant information such as what the data will be used for, who it will be shared with, how long it will be kept for and what decisions will be based on the test result. Many employers will be familiar with this requirement in respect of employee data through the preparation of their privacy notices.
Consultation
Employers are required to consult with employees concerning health and safety at work, which will include the introduction of workplace testing. Therefore, if an employer decides to implement workplace testing, they will need to undertake a period of consultation with the employees, setting out the rationale and the benefits of testing, in order to identify where this may cause issues and whether there are any steps the business can take to mitigate those issues arising.
In view of the considerations above, mandatory testing has the potential to be a controversial step for employers to take. As an alternative to mandatory testing, employers could seek to introduce a voluntary testing scheme (which is likely to be reasonable) whereby employees are encouraged, but not required, to take regular tests if they plan on attending the workplace. Employers will still have the same data protection considerations as in relation to mandatory testing, but such a policy is much more likely to be reasonable and matters such as discrimination will be less of a concern.
If employers decide to implement the practice of workplace testing, they should consider putting in place a written policy outlining all legal and practical issues in order to demonstrate that these have been discussed and considered and to provide the relevant information to the employees.
If you have any questions about COVID-19 testing in the workplace, COVID-19 policies or any other employment related issues, Taylor Walton’s Employment Team are happy to assist at: https://taylorwalton.com/employment/