Although the deadline for signing up for the workplace testing scheme has passed, many businesses are receiving free lateral flow tests from the government until 30 June 2021.

We outline below some essential legal issues that workplace testing raises and considerations you should bear in mind when operating testing in your business.

Considerations before introducing workplace testing

When deciding whether to introduce workplace testing to your business, there are some essential things to think about.

Is testing a necessary and proportionate measure to protect against Covid-19 in your workplace?

There is no requirement for businesses to implement workplace testing as a safety measure to protect employees and customers from the risk of Covid-19.

The government's covid-secure measures require all employers to include social distancing, increased hygiene, and ventilation.

We advise conducting a risk assessment to identify the particular risks that your workplace presents and establish whether workplace testing is necessary.

As covid tests are invasive, you should not require employees to take them if they are not necessary, and other measures could offer sufficient protection.

Are there suitable alternative measures?

A popular alternative to workplace testing is conducting temperature checks on employees before they enter the workplace.

This is a much less invasive measure than requiring employees to take a covid test, but mandatory temperature testing to enter the workplace should still only be implemented if necessary and proportionate in line with your risk assessment.

How will the testing operate?

There are three main options available to employers who want to introduce workplace testing to their business:

  • Conduct the tests at the workplace themselves
  • Engage an external provider to run onsite testing on their behalf
  • Send employees to community test centres provided by the local authority

The government is also providing home test kits to businesses that are unable to facilitate onsite testing.

Practical issues to Covid testing in the workplace

Workplace testing creates a range of practical issues, the most significant of which are explored below.

Other Covid-secure measures

Workplace testing is not a replacement for all the other safety precautions adopted to protect against the risk of Covid-19, such as social distancing and increased hygiene.

As lateral flow tests are not 100% accurate and reliable, you should implement testing alongside existing workplace covid-secure measures.

Arranging tests for staff

The government advises that employees take two lateral flow tests each week, regardless of whether they have had a Covid-19 vaccine.

To maintain staffing levels in your business, we advise creating a schedule so that all employees have two tests arranged each week at times that accommodate different shift patterns.

If testing is mandatory in your workplace, employees must be paid while taking the covid tests provided.

The same requirement does not apply if testing is voluntary, but uptake is likely to be low if employees are not paid for attending test appointments.

Employees are not required to isolate pending the result of their lateral flow test (which typically takes 30 minutes); therefore, you would only have to pay the employee for the 5-10 minutes spent actually taking the test.

Positive test results 

If an employee's lateral flow test comes back positive, they must immediately go home and self-isolate following NHS Test and Trace guidance.

Employees must inform you if they are required to self-isolate, and as an employer, you will be liable if you knowingly allow an employee to stay at work when they have tested positive for Covid-19.

You are also under an obligation to report the results of lateral flow tests provided by the government to Public Health England.

The test results of employees should be kept confidential therefore, you must notify the workforce of potential or confirmed Covid-19 cases anonymously and not disclose any personal data.

As lateral flow tests can be unreliable, the employee may be required to take a PCR test to confirm the result.

workplace testing policy

We advise creating a workplace testing policy so that employees have a clear understanding of how testing will operate, their responsibilities and the importance of compliance with other safety precautions.

Including the reasons why workplace testing is being introduced, and the benefits it offers within the policy may also increase employee co-operation.

It is beneficial to update or amend existing policies so that they fit with your workplace testing scheme.

For example, employees who must self-isolate following a positive asymptomatic test result may not qualify for company sick pay as this isn't typical sickness absence.

However, if employees will only receive SSP for any period of self-isolation, this may deter them from participating in the testing scheme.

Therefore, you may decide to amend your sickness policy so that employees will receive their normal salary if they are required to self-isolate following a positive test to encourage uptake.

Similarly, you could amend your absence management policy so that absences from work due to isolation following a positive test result will not result in formal action, as this is likely to be unfair in the circumstances.

Data protection

Employee test results are a form of special category personal data, which carries significant obligations regarding its collection and processing.

As an employer, you can only collect and process this type of data if you have a lawful basis and use and store the data for no longer than is necessary.

Using the results of covid tests to ensure the safety of the workplace is a legitimate purpose, but you must comply with data protection obligations.

The ICO has issued some helpful guidance on data protection issues related to testing.

This guidance highlights the importance of explaining clearly to employees why you are collecting their data and how it will be used.

Therefore, we advise conducting a data protection impact assessment to establish why this data needs to be collected and processed.

You should also provide sufficient information to employees regarding this.

You must obtain employees' consent to share their results with Public Health England in accordance with your obligations.

However, there is no need for you to obtain an employee's consent to process the results as an employer.

Failure to comply with data protection requirements may cause employees to raise complaints to the ICO, which could result in a significant fine.

Mandatory testing

The position on mandatory testing is very similar to mandatory vaccination – we generally advise against it as it carries significant risk.

Testing is less invasive than vaccination, and the risk of discrimination claims is lower as there are not many religious reasons or health conditions against testing.

However, any mandatory testing policy will need to accommodate employees with genuine reasons for refusal, particularly those associated with protected characteristics.   

There is also a risk of unfair dismissal claims from employees with over two years' service if they are dismissed for refusing to comply with mandatory testing.

The success of such a claim would depend upon whether dismissal was reasonable in the circumstances and consideration will be given to the importance of testing in the workplace.

Given that lateral flow tests do not provide flawless results and testing is not a substitute for other covid-secure measures, it is questionable whether mandatory testing will be justified unless there is a strong health and safety basis for testing.

Therefore, the safest approach would be to introduce workplace testing on a voluntary basis and encourage participation through effective and informative communication with employees. 

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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