Please note that this page is no longer being updated. We are continuing to make the page available as it contains a number of sections which may remain relevant for employers as they deal with the issues that COVID-19 testing presents; however, we suggest that you check the current position on testing and take advice where necessary.
Following the lifting of most restrictions on 19 July 2021, COVID-19 lateral flow testing, alongside other safety measures, continues to offer employers an additional mechanism for protecting the health and safety of their staff from the risk of COVID-19 as more workplaces gradually reopen.
The government has been encouraging as many employers as possible to sign up to the testing programme. This allows employers to regularly test employees attending the workplace, even if they do not display symptoms of COVID-19. It is not compulsory for employers to implement a workplace testing scheme, but many employers will wish to do so to encourage staff to return to work. The government’s guidance page is the primary source of official and up to date information on the workplace testing initiative. This guidance note provides an overview of the legal and practical issues for employers to consider, along with links to more detailed guidance, on workplace testing.
Who is eligible for free tests?
Employers in England with 10 or more employees were able to register with the Department of Health and Social Care before 12 April 2021 for free lateral flow test kits. Those who registered in time can order free test kits, which allow employees to be tested test twice a week, until 19 July 2021. Alternatively (or after that date), employers can register with an approved third party provider to obtain lateral flow tests. The government’s expectation is that employers set up on-site testing at the workplace unless there are logistical problems in doing so (in which case employees can test themselves at home).
The government’s workplace testing guidance contains a link to COVID test providers, who have confirmed they meet the minimum legal and regulatory standards required to provide such tests. This is useful for employers that want to partner with an approved organisation when implementing a testing scheme.
Employers who sign up to the government lateral flow testing scheme will be given access to the government’s online portal, which contains webinars and practical guidance from employers who have already successfully implemented workplace testing.
Types of test
There are currently two main types of COVID tests that are widely used:
(a) polymerase chain reaction (PCR) tests that check for the genetic material (RNA) of the virus in the sample. You send the sample for processing at a lab.
(b) lateral flow device (LFD) tests that detect proteins called ‘antigens’ produced by the virus. They give rapid results - 30 minutes after taking the test.
The government envisages lateral flow tests being more commonly used in most workplace testing schemes because they are faster, cheaper, and more efficient.
Deciding whether workplace testing is right for your business
Workplace testing is not currently mandatory and the government’s updated workplace safety guidance does not currently include testing in the list of steps that employers should necessarily be taking. It is therefore up to employers if they want to implement testing.
However, the government is recommending that private sector employers offer their workforce (where those employees are on-site) access to a minimum of two lateral flow tests every week to help identify staff who are carrying the virus without displaying symptoms. As more workplaces open to greater numbers of people, it is possible that employees may start to enquire about testing when discussing their employer’s return to work plans. The tests are intended for workplace testing and not for employees who are working from home. However, anyone in England is able to access free lateral flow tests to carry out at home if tests are not available from their employer, although the guidelines around testing in the devolved nations varies.
The benefit of asymptomatic testing is that it identifies cases which would have been undetected otherwise and allows those individuals to self-isolate therefore reducing the risk of transmission of COVID-19 at work. Vaccinated employees should be tested in the same way as others as the vaccine is not 100% effective at preventing COVID-19 infection and the effect on transmission is still being investigated.
Implementing a workplace testing programme
Voluntary testing
The government recommends that workplace testing is introduced on a voluntary basis and many employers have already successfully implemented voluntary workplace testing schemes. Such schemes have been achieved through a clear workplace testing policy and communication plan, positioning workplace testing as an additional health and safety measure that aligns with other COVID secure measures. You consult with employees about your plans - explain why you are asking employees to be tested, along with the benefits of doing so and listen to what they say. You should also remind staff what other COVID secure guidelines remain in force, to avoid mistaken assumptions that testing replaces or relaxes such restrictions.
In particular, the government advises employers to discuss the following with their employees:
- why you are setting up a testing programme
- whether the programme is voluntary or mandatory
- what the consequences are for staff who decline to take part in the testing programme
- what the next steps are for staff after they receive the result, including the requirement to notify their employer of a duty to self-isolate if the worker is due to work (or undertake work activities) during the isolation period (failure to do so may result in the worker receiving a £50 penalty)
- where staff can seek advice on their rights throughout the process
- whether staff will have the opportunity to discuss the collection of their data if they have any concerns.
Employers who have already introduced voluntary testing are reporting anecdotally that their employees are responding positively to testing, viewing it as a positive step offering reassurance that their place of work is safe. It also provides a degree of comfort that, by going into work, they are not in danger of infecting those with whom they live. You may find the Acas guidance on Workplace testing for coronavirus (COVID-19) a useful read.
Can I make testing mandatory?
Some employers may want to consider introducing mandatory testing. Without any statutory obligation to make workplace testing compulsory, employers who want to make the testing mandatory for some or all of their employees will need to look to other means. Whilst mandatory testing is not as contentious as requiring employees to have the COVID vaccination, lateral flow testing does involve taking a swab from the nose and throat. As such the test could be considered invasive and is potentially unpleasant.
Employers could include a requirement that a new recruit agrees to regular workplace testing as a condition to any offer of employment. However, there would need to be flexibility in any such policy to accommodate the situation where a person was not prepared to take a test, particularly if their refusal was for medical or religious grounds. The situation is trickier for existing employees. Employers may want to seek to rely on the argument that taking a workplace test is a lawful and reasonable instruction. The question of what is reasonable will be fact sensitive for every workforce and workplace, and is likely to depend on the risk and implications of COVID in the particular setting. For example, mandatory testing may be reasonable where it is not possible to put in place other COVID-secure measures. What is ‘reasonable’ is also likely also change over time, if, as expected, taking workplace tests becomes more commonplace. However, for the moment, a blanket requirement that all staff must be tested may be difficult to justify.
Do I need to pay an employee for time they spend taking a test?
Employers who are asking employees to be tested in the workplace will probably need to pay them for their time to do this – not least as the testing is likely to continue throughout the day. An efficiently run testing centre will mean that the employee need only be away from their workstations for a short amount of time and, if employers do not pay for employees whilst they take the test, they may find more employees refusing to be tested.
Can I ask employees to test themselves at home rather than set up an onsite testing centre?
Asking employees to take tests at home relies on the individual taking responsibility for carrying out the test and reporting the results accordingly. An onsite testing centre has the advantage of offering employers oversight as to who is being tested although results are sent to the individual and not the employer unless the employer obtains consent. Employees are obliged to inform their employer if they test positive.
What can I do if an employee refuses to take a test?
If an employee refuses to take a test, you should firstly take the time to understand the employee’s reasons for refusing. Many employees may just need reassurance about the testing process – they may be scared that it will be painful or may be worried about their privacy when they take their test or what will happen to their data. They may also be reluctant to agree if they think they will lose pay if they test positive. You will need to carefully consider the employee’s reasons for refusing to take the test and whether any concerns can be allayed (which may well be possible in the majority of cases).
If testing is voluntary and an employee continues to refuse to take a test then it will be difficult to take disciplinary action. That said, if the employee can work from home, it may be reasonable to ask them to continue to work from home and not come into work. If testing is mandatory, and that is reasonable, you may have more scope for disciplinary action but that should not be your first step. As before, firstly you should explore the employee’s reasons for refusing and see if you can allay those concerns. If an employee has valid medical reasons for refusing a test you will need to consider the situation particularly carefully because disciplinary action in those circumstances may be difficult to justify and may, in certain situations, amount to disability discrimination. If the employee can work from home effectively then a disciplinary sanction for refusing to take a test is unlikely to be justifiable. If the employee cannot do their job from home and the requirement to test is reasonable then you may be able to discipline the employee for failing to follow a reasonable management instruction. Any sanction needs to be proportionate - dismissal for refusing to take a test is unlikely to be fair save in limited circumstances.
Can I send an employee home without pay if they refuse to take a test?
In the absence of a contractual entitlement to suspend without pay (which is rare), sending an employee home on nil pay for refusing to take a test could give rise to a claim for unlawful deductions from wages (as the employee could argue that they have presented themselves as available for work and there is work for them to do so they are entitled to receive full pay). If the requirement to take a test is reasonable, you may be able to argue that the employee is not, in real terms, available to work as testing is necessary to comply with health and safety obligations. This may justify the decision to withhold pay. However, proceed with caution - as with so much to do with COVID, how the employment tribunal would view this argument remains to be seen.
What happens if an employee tests positive?
An employee who tests positive will be legally required to self-isolate for 10 days. This will remain the case even after 16 August 2021, when the requirement to self-isolate after contact with someone who has tested positive for COVID-19 ends for children and adults who have been double-vaccinated.
If an employee has been tested as part of a government-registered workplace testing programme, their test results will be shared automatically with NHS Test and Trace, their local GP and Public Health England via the workplace testing e-system. NHS Test and Trace may identify the employee’s close contacts and they may be legally required to self-isolate too (subject to the lifting of the self-isolation requirement for close contacts who have been double vaccinated on 16 August as discussed above). This could include colleagues at work. Employers must not knowingly allow a person, who has been told to self-isolate, to work anywhere other than where they are self-isolating. Employers found to be in breach of this requirement are likely to be issued with a fixed penalty notice (starting at £1,000).
Employees who test at home only have to let their employer know their test result if they have tested positive. They must do so or face a possible £50 penalty. Where a lateral flow test is carried out at home by an individual themselves (by swabbing without supervision and personally reporting the test result) and it is positive, they may be advised to take a PCR test. If that PCR test is negative, the employee’s period of self-isolation comes to an end.
How should we treat absence and pay for an employee who tests positive for COVID?
An employee who tests positive and is self-isolating as result should receive statutory sick pay (if eligible) even if they are not experiencing symptoms. Whether they are entitled to enhanced sick pay under your company sick pay scheme will depend on the terms of the scheme. However asymptotic employees may prefer to work from home whilst they self-isolate if they can in which case they should be paid their normal pay in these circumstances.
An employee who has tested positive for COVID should not be placed on furlough whilst they self-isolate, as the relevant government guidance on the Coronavirus Job Retention Scheme confirms that it is not in place to deal with short term absences.
Data protection considerations
Test data, including the results of employee tests, are ‘data concerning health’ for the purposes of the GDPR and, in turn this means that it is categorised as ‘Special Category Data’. Special Category Data is subject to additional safeguards and may only be collected in certain circumstances.
Employers must have a ‘lawful basis’ for collecting the data, in the same way that they would do for other categories of personal data. The Information Commissioner’s Office (ICO) have indicated that the ‘Public Task’ and ‘Legitimate Interest’ bases are likely to be apply when processing personal data in the context of workplace COVID testing, and so, providing they have considered whether testing is necessary, most employers should be able to rely on one of these lawful bases.
The ‘Employment Condition’ (broadly, that the data processing is necessary for compliance with employment law obligations) is also likely to provide a basis for employers conducting testing in order to comply with their health and safety law obligations. Conversely, the ‘Public Health Condition’ (which applies if the processing is necessary for reasons of public interest in the area of public health) provides an alternative basis, when employers are helping to stop the spread of the virus by running their own testing programmes and reporting results to relevant public health contact tracing authorities.
The ICO guidance makes clear that employers considering requiring testing must conduct a data protection impact assessment (DPIA) focusing on testing and the new risks it will create. Unnecessary data should not be collected and strict confidentially and data security are essential.
Your privacy policy may also need to be updated to be clear about the intentions for processing employee testing data. Employers are advised to read the ICO’s testing guidance for employers in full. For more information about the data protection considerations of workplace testing please see our guidance on COVID-19: ICO issues guidance on workplace testing for employers.
What are the practical issues and steps for employers setting up workplace testing?
There are a number of practical issues to consider when implementing a workplace testing programme. Some points to consider include:
- Decide on how you will operate your testing programme - can you set up an on-site testing centre or do employees need to test themselves at home? If you are setting up an on-site testing centre how will this be run?
- Set the parameters of your testing programme - who will you test - will it be any employee who attends the workplace or just those who attend regularly? will testing be voluntary? Can mandatory testing be justified in some instances and what will you do if someone refuses to be tested?
- Consult with and communicate clearly with your workforce – consulting with employees about your plans and providing clear information to employees on the workplace testing programme may help encourage participation and will support any employees who may have doubts. Be prepared for individuals to have concerns about the testing and the consequences if they test positive and need to self-isolate. Consider what level of pay self-isolating employees will receive and the impact on trigger points under sickness policies. Employees should be signposted to sources of further information and support, both internal and external. Make sure that external communications align with the internal messaging and that all messaging aligns with government guidance.
- Maintain safety measures that are already in place – workplace testing should continue to be used alongside COVID-secure measures for the time being. Employers may want to remind employees to continue to abide by the COVID measures and not to relax their efforts.
- Consider your approach to third parties - identify what approach you will take to visitors to your premises – will you require them to provide evidence that they have tested negative before allowing them to enter your premises? Make sure your approach to visitors does not undermine your approach for employees.
- Facilitate employees being tested – consider whether your day-to-day operations are likely to be disrupted by the testing and employees being unavailable for work on short notice if they test positive.
- Consider how medical records will be managed – there will likely be changes to the medical information an employer will hold about its employees and therefore data protection policies and processes should be reviewed to ensure that they are fit for purpose.
- Keep up-to-date on developments – the testing programme and its impact will continue to evolve over the course of the next few months. Employers will need to be prepared to adapt their plans and approach in line with new developments.
If you have any questions about how these developments (or any other COVID-19 measures) will affect your business, please contact Luke Bowery or anyone in the Burges Salmon Employment team, who would be happy to advise you.
This guidance notes gives general information only and is not intended to be an exhaustive statement of the law. Although we have taken care over the information, you should not rely on it as legal advice. We do not accept any liability to anyone who does rely on its content.