COVID-19 – Employer Testing

The government has issued guidance for employers who wish to set up and run their own testing programmes for employees outside the NHS Test and Trace service. These internal programmes are voluntary but may be advantageous to employers in order to increase business confidence, protect business continuity and help them navigate the challenging months ahead. However, any businesses that are considering implementing an internal testing programme should have regard for the relevant legal obligations and practical guidance.

Preliminary considerations

An important distinction to be established at the outset is the difference between a virus and antibody test. The latter identifies whether someone has previously had the virus but does not confirm immunity and consequently, even if the individual concerned has tested positive for the presence of antibodies, they must continue to adhere to social distancing guidelines.

A virus test determines whether someone currently has COVID-19. If that person tests positive, they must self-isolate for ten days from when they developed symptoms, or from the date of the test if they do not have symptoms. A negative result does not definitively confirm the individual is free of COVID-19, or will not catch it in the future, but does mean they are at low risk of having the virus at the time of the test and they do not have to self-isolate unless, for instance, they feel unwell, or a member of their household has symptoms or has tested positive.

Before deciding to establish an internal testing programme, employers should consider a range of factors. In addition to which type of test to use, employers should decide whether they will test symptomatic and/or asymptomatic employees and how often. In this regard, employers are advised that those with symptoms should be tested within five days of developing symptoms, and currently there is no guidance on how many times those without symptoms should be tested. Other considerations might include the availability of appropriate testing facilities, how the test results will be used and what to do when employees do not wish to be tested.

In carrying out an internal testing programme, employers must also ensure that they or the third-party healthcare provider they engage use legal test kits and that the laboratory complies with legal requirements and guidance in respect of conducting tests, and collection and notification of results.

Communication and data protection

Employers should communicate their decision to implement such a programme and the basis for it, as well as the process and implications of a positive/negative result to their staff. If they recognise a union or have an employee forum or equivalent in place, employers are strongly advised to consult with those bodies around the programme before implementation. As information concerning an individual’s health is particularly sensitive, it can only be lawfully processed following strict requirements in the GDPR and Data Protection Act 2018.  It is very important that employers comply with these obligations, including preparing a data protection impact assessment to identify and minimise any risks and appropriate policy documents and privacy notices detailing the processing and security provisions in place. While employers are encouraged to keep their workforces informed of potential or confirmed COVID-19 cases among their colleagues, they should ensure individuals are not identified and no personal data is shared unlawfully.

How employers can use test results

While employers must not discriminate against their employees on the basis of any test results, nor provide them with any misleading information, such as a certification of immunity, they can use the results to identify who must self-isolate and, in the case of an antibody test, determine who may already have had the virus.

Therefore, provided it is compliant with legal requirements and government guidance, an effectively run testing programme may be useful to employers, helping to protect their workforce, and customers, thereby boosting morale and confidence.  Given the complex data protection and employment implications we strongly recommend employers obtain legal advice prior to implementation of any such programme.