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Workplace testing – FAQs for employers

22 April 2021

Testing for Covid-19 at work is set to play an important role in the government’s gradual reopening plans with employers being strongly urged to sign up for free lateral flow tests. These FAQs cover the legal issues and considerations that employers take on board before rolling out a workplace testing programme.

Key latest developments

  • The deadline to register for free test kits has now passed and businesses can no longer sign up to the government testing scheme. 
  • All employers with staff unable to work from home who had registered by the 12 April deadline can continue to order free test kits until 30 June 2021. As of 6 April, home testing kits will be available to order for all businesses who employ more than 10 people where on-site testing is not possible.
  • The government announced on 5 April that everyone in England will be able to take a free LFD test twice a week if they wish to do so. 
  • The government is reviewing whether Covid-status certification could play a role in reopening the economy. Covid-status certification would be available both to vaccinated people and to unvaccinated people who have been tested.

Deciding if workplace testing is right for the business

Should we be carrying out workplace testing?

The government’s workplace safety guidance does not include temperature-checking or medical testing in the list of steps that employers should necessarily be taking. However, this does not prevent employers from introducing a workplace testing programme if it is considered necessary and proportionate and features in the risk assessment. The government guidance confirms that testing is an option for employers

Temperature-checking on entry to the workplace is relatively commonplace and straightforward but will not pick up asymptomatic cases. More recently, employers have been able to organise workplace lateral flow testing. The government is encouraging this type of testing at work to help control the spread of the virus.

What is a lateral flow test?

In summary, a lateral flow device (LFD) uses the same technology as a pregnancy test with a test paper that changes colour if a sample taken from the throat and nose indicates coronavirus is present. After the swab from the tester is put into a special solution, it is then transferred to the LFD with the result becoming visible after 30 minutes.

This is different from a polymerase chain reaction (PCR) test which is more accurate as it involves a laboratory analysing the sample and providing the result.

Why are the government encouraging lateral flow testing and how effective is it?

The well-known message that one in three people can have coronavirus without displaying any symptoms is the main reason the government is encouraging workplaces to roll out workplace lateral flow testing. The benefit of asymptomatic testing is that it identifies cases which would have been undetected otherwise and allows those individuals to isolate, in the hope of avoiding a full-blown workplace outbreak.

Lateral flow tests are less sensitive than PCR tests (which require a laboratory) in determining whether someone has coronavirus. However, research suggests that they work particularly well for individuals with a high viral load who are as a result at the most infectious stage of the virus.

No test is perfect and lateral flow testing of your workforce does not mean that you can reduce other covid-19 secure workplace measures already in place. Any internal communications will need to emphasise this to employees.

What does lateral flow testing cost?

This depends on which workplace testing programme employers choose.

The government had given businesses until 12 April 2021 to register for a supply of test kits, which will be provided without charge until 30 June 2021. While the tests are free, employers will still need to cover the staffing costs of setting up and organising their own onsite testing or using the services of a third-party provider to run the testing on their behalf. There will also need to be a dedicated space in which to conduct testing with appropriate privacy.

The government has published a list of approved Covid-19 test providers if organisations wish to partner with a third party to organise their workplace testing.

If it is not possible for testing to be carried out on site, businesses can ask staff to carry out tests at home.  There may still be some additional staff costs involved in home testing (see below).

What issues do we need to consider for onsite testing?

Here is a list of the important practical matters you should resolve:

  • Decide what is the right test for your workplace and staff.
  • Consider whether a trained professional is required or recommended to carry out or supervise self-testing.
  • If so, the required personal protective equipment (PPE) and safety measures for the trained professional.
  • Notify your insurer (if appropriate)
  • The scope of testing – employees, contractors and visitors?
  • Designate a workplace area suitable for testing and the correct storage and disposal of test kits.
  • The timing of tests – temperature tests would normally be carried out on arrival, whereas lateral flow tests would typically be organised with an appointment rota covering all staff working patterns.
  • The frequency of testing. (Government advice is that lateral flow tests should be carried out twice a week.)
  • Recording lateral flow test results and registering them with Public Health England.
  • Policy decisions such as whether to mandate testing, data privacy issues, impact on staffing levels and furlough, and sickness policies. (See the section on legal issues below.)

Following the government announcement that individuals can access lateral flow tests themselves, should we continue with our workplace testing plans?

This depends on whether the employer wants to retain control and oversight of the process.

Without running workplace testing onsite, an employer has no way of knowing whether any employees are testing themselves regularly at home and can only inform employees of the opportunity available to them and hope employees decide to participate. The logistics of attending a testing site twice a week or ordering/collecting the test kits may put some people off from participating.

It is worth noting that the portal for ordering tests reminds individuals that it can only be used if rapid flow tests are not available from their employer. 

 

Logistical issues involved in workplace testing

If we implement workplace lateral flow or temperature testing, can we relax some of our other safety measures?

No. Temperature testing will not pick up any asymptomatic cases, and even lateral flow testing cannot currently be used as a reason for relaxing other safety measures. The government and Public Health England are clear that “LFDs alone aren’t a silver bullet for stopping the spread of virus”. Testing should be used in combination and alongside other safety measures such as PPE, regular hand washing and social distancing. Given the accuracy of tests does vary widely, especially if not closely supervised by a health professional, testing should be regarded as a bolt-on to existing safety measures.

Businesses that adopt workplace testing need to ensure they have consistent and strong messaging on the role it plays in their risk assessments and keeping the workplace Covid secure. There is a danger that an ill-informed employee, on receiving a negative test result, may assume they do not have the virus and not properly comply with the core safety measures such as social distancing or engage in more risky behaviour outside the workplace. Employers can prevent this through appropriate messaging about the limitations of the tests themselves and reinforcing the importance of continued compliance with safety protocols.

Do we need employees to isolate pending results of lateral flow tests?

This depends on your risk assessment and what other safety measures you have in place. Updated government workplace guidance does state that “You should also ensure that an appropriate setting is available for individuals to wait in while their test is processed.” 

However, our understanding is that the government’s clinical procedure classes a waiting area for test results as optional. Provided you have appropriate Covid-19 secure workplace measures in place, you could allow employees to return to their work while waiting for test results. In the absence of workplace testing, any staff without symptoms would continue to work and potentially infect others.

What happens if an employee receives a positive result?

They must immediately return home to self-isolate for the period notified to them by the NHS Test & Trace system. Employers commit an offence if they knowingly allow a person who has been officially notified that they must self-isolate to work anywhere other than where they are self-isolating.

Employees are legally required to inform their employers if they are officially told to self-isolate. The employer should take care to avoid disclosing an individual’s identity to their colleagues if they do test positive for coronavirus, although in some circumstances this will be unavoidable.

The current NHS guidance is that a positive result from a LFD test should be verified with a PCR test.

Where an individual is officially advised to take a further test to confirm their result, the requirement to self-isolate ends immediately if they are notified that the result of the second test is negative.

A high temperature reading does not trigger a legal duty to self-isolate, but the employer should refuse entry to the workplace and ask the employee to return home and book a PCR test via the NHS.

For the impact on pay, see below under “Do we need to amend any of our sickness policies?”

What happens if an employee receives a void or invalid result?

 An invalid result occurs where the sample could not be read, perhaps because the result itself is not clear (indeterminate) or a test has malfunctioned. Employees should either be retested with a LFD test again or if not practical, advised to retest with a PCR test by requesting a home test via the government testing website. Two invalid results should always necessitate an NHS PCR test. An invalid result does not, by itself, trigger any self-isolation requirements.

Do vaccinated employees need to continue using lateral flow tests and/or undergo temperature checks?

Yes. Current advice is that vaccinated employees should continue to be part of any workplace testing schemes or other safety measures, such as temperature checks. This is because no vaccine is 100% effective at preventing a Covid-19 infection and the effect of vaccination on transmission is currently unknown.

Can employees use lateral flow tests themselves at home?

As of 6 April, the government workplace testing scheme has been expanded for employers who are unable to provide on-site testing to supply home testing kits. The government guidance for employers has not yet been updated to reflect this change but the press release gives the examples of a lack of space or multiple site locations as reasons for not being able to provide onsite testing.

Otherwise it depends on the license restrictions and regulatory approval that the test has. Some tests (particularly those used by private third-party companies) are licensed for use only by or under the supervision of a trained professional. Some third-party providers are also offering virtual testing, with supervision from a professional over video-calling technology, enabling the test to be carried out from home.

Other rapid flow tests have received approval to be used at home by individuals. We understand the government is using the Innova brand test kits, which received approval for self-administration at home in December 2020, for schools. Other lateral flow tests are in the process of being approved as home test kits, so this is likely to be a more widespread option in future for interested businesses.

Key legal issues raised by workplace testing

Can we make asymptomatic lateral flow workplace testing mandatory?

This is possible, but not without risk. While mandatory testing is not as contentious as mandatory vaccination (see our Vaccination FAQs for details), it still requires individuals to undergo an invasive and unpleasant test in the chance of identifying positive cases.

The main legal risks arise in relation to:

  • data privacy (see below) and
  • employees with more than two year’s continuous employment, who could claim unfair dismissal if they were to be dismissed for refusing to comply with an employer’s order to submit to testing. It would then be for an Employment Tribunal to assess the reasonableness of the employer’s decision to dismiss. Given that the tests are not infallible in terms of identifying positive cases, employers may struggle to show that testing needed to be mandated as part of their risk assessment. This is particularly the case since testing does not allow the removal or relaxation of other Covid-19 secure workplace measures.

In contrast to the position with a mandatory vaccination policy, it is unlikely that an employee would be able to claim that blanket mandatory workplace testing would be discriminatory. There are few, if any, valid religious objections or medical conditions preventing testing that are capable of amounting to a disability.

The government recommends that workplace testing should be voluntary and sit alongside other safety measures such as social distancing. There may also be benefits from an “information and encouragement” route of strongly urging employees to embrace testing, rather than making it mandatory. Offering incentives is also less of a risk than for vaccination, given the risk of a genuine discrimination claim is extremely low in relation to testing.

As the pandemic continues to evolve, it is possible that the answer to this question may change particularly in cases where an employee has refused both vaccination and testing. As offices reopen, it may be possible for employers to insist on an employee’s participation in workplace testing as a condition of returning the office, with those who do not wish to participate being asked to continue working from home.

Can we insist on taking electronic temperature readings at entry points?

Data protection law allows employers to process some health information for the purposes of complying with health and safety duties and their duty of care towards staff, but again this needs to be both necessary and proportionate – the employer’s assessment of this is crucial.

In some workplaces, temperature testing may be necessary and proportionate, while in others it might not be if there are less invasive measures that would be adequate. These might include requesting that people take their own temperature before attending work, giving clear guidance about when not to come in, and implementing rigorous health and safety practices. If temperature testing is necessary, consider the way in which it takes place – a discreet device at the entrance which turns away people with a high temperature is much more proportionate than an employer taking a daily record of each employee’s temperature.

Do we need to amend any of our sickness policies?

Employers who want to encourage high levels of testing may need to consider if their sickness policies could discourage employees from coming forward for fear of a positive result.

Employees who test positive through asymptomatic testing may not fall within your company sick pay policy as they are not actually absent through illness. Some companies may have already amended their policies to cover coronavirus self-isolation (including situations for household members testing positive), but it is a necessary consideration for businesses who haven’t done so and want to introduce workplace testing.

An employee may be entitled to statutory sick pay (SSP) if they earn at least £120 a week. This is currently £95.85 per week, although some organisations may offer enhanced sick pay above SSP levels. SSP is paid from the first qualifying day (a day they are meant to be in work) for those who are off sick or self-isolating due to coronavirus, provided they are off for at least four days in a row.

For organisations offering SSP only, staff may be reluctant to attend for voluntary testing if a positive result means receiving only SSP whilst they are self-isolating. However, some employees may also be eligible for a one-off payment of £500 from the Test and Trace Support Payment Scheme.

As a means of encouraging uptake, some employers are implementing a workplace testing policy which provides full salaries for those who receive a positive test (as a result of the workplace screening) during their period of isolation if they cannot otherwise work from home.

Employers may also want to consider how someone’s absence would be treated for the purposes of any attendance management policy (for example, being used in a Bradford Factor calculation or triggering an employee into an attendance management review). 

What should we consider about staffing levels?

When drawing up a testing plan, businesses will need to consider how the desired testing frequency can be achieved for all staff, across all shifts and working patterns.

Any workplace testing comes with the possibility of staff needing to be sent home at short notice. This means you may need to call on employees at short notice to cover someone’s absence or redeploy them at short notice to different locations. You should consider building this level of flexibility into employees’ contracts if you do not already have it.

Can we place employees who test positive on furlough?

Furloughing employees who test positive for coronavirus is not endorsed by the current guidance on the Coronavirus Job Retention Scheme, which says that it “is not intended for short-term absences from work due to sickness” and that “short-term illness or self-isolation should not be a consideration in deciding whether to furlough an employee”.

In contradiction with the official advice, the Acas guidance suggests that employers may consider using the furlough scheme in such circumstances. In our view, employers who are using the furlough scheme flexibly to rotate staff on and off furlough could potentially make the case for “rescheduling” the self-isolating employee’s turn on furlough - particularly if this doesn’t result in the employee spending more time on furlough than they would otherwise have done. This is an untested and risky area, however, and employers would be well advised to seek advice on their particular circumstances given the increased scrutiny of the use of the furlough scheme.

For further information on furlough generally, see our FAQs on furloughing employees.

Do we need to pay employees for time spent taking lateral flow tests?

Where workplace testing is mandatory, employees will need to be paid for their time to participate in it. The position for voluntary testing is less clear cut, but in practice employers using testing programmes may need to pay employees for time spent taking the test to encourage high participation levels among their workforce.

Employees do not need to isolate for 30 minutes waiting for results, so only the time taking the test will be lost (estimate at around 5-10 minutes). The cost is therefore likely to be significant only for hourly-paid employees where they are asked to attend in advance of their shift or travel to a different location to take the test.

Are there any minimum wage risks around testing?

We recommend employers take advice if employees are receiving the national minimum wage (NMW) and are testing from home outside of working hours (e.g. on a Sunday evening before attending their shift on Monday morning). This practice primarily allows the employer to manage any staffing issues should a positive test be received, but it runs the risk that a failure to make payment for the time spent taking the test and recording the result could mean non-compliance with the NMW. Employers should carefully consider whether they should request staff to test at home or do so on attending their workplace.

Do we need to consult with employees before we introduce a workplace testing scheme?

Yes. Government guidance emphasises that employers have a duty to consult their people on health and safety. (For further discussion of this, see our FAQs on managing a safe return to the workplace.)

Acas’s guidance also recommends consulting with employees as a matter of best practice before introducing any testing regime to cover how it will work, the consequences of a positive test (including pay) and how employee data will be used and shared.

Should we have a workplace testing policy?

Yes. You will want to explain why you are asking employees to be tested along with the benefits in a detailed internal communications plan. This should cover why the business has decided testing is appropriate and what expectations it has of staff both in testing and compliance with other safety measures. Risk assessments should also be updated.

Employers may find it helpful to have a written policy as a method of communication with employees, and also to formally record any changes to any other policies as a result of the testing regime (for example, if sickness policies are being amended). Equally, a reminder that all other Covid-secure guidelines remain in full force is advisable, to address any mistaken assumptions that testing replaces or relaxes such restrictions.

In terms of temperature testing, any policy should include details of what is a high temperature (NHS guidance states 38 degrees and above) and the procedure that will be followed in the event of a high reading. For instance, checking readings by immediately repeating the reading and how long access to the workplace will be denied. Employers may wish to see evidence of a negative PCR test before allowing the employee to attend the workplace again.

What data protection issues arise in respect of workplace testing or extra precautions such as temperature testing?

Before conducting any workplace testing programme, employers will need to conduct a data protection impact assessment (DPIA). This is because processing employee’s health data involves large-scale processing of special category data. The DPIA should consider why such processing is needed and what policies or information about the processing need to be shared with employees.

Employee health data can be processed if there is a lawful basis for doing so. Given that all employers are legally required to undertake risk assessments for health and safety purposes, and provide a healthy and safe working environment, most employers will be able to rely on their health and safety obligations as the legal basis for processing any health data. 

The Information Commissioner’s Office (ICO) has released guidance for employers on carrying out workplace testing, emphasising the need to inform staff in an open and transparent manner about the reasons for processing their personal data and what decisions will be made as a result of you having that information.

This is particularly important for workplace testing as all lateral flow test results must be registered with Public Health England, which can be done online or by telephone. Depending on the approach taken, and whether the employer partners with a provider, either staff will be reporting their own result or the provider will do so.

Staff need to be made aware that they must consent to their test result being shared with Public Health England, and in some cases, their employer. However, provided they comply with their obligations (e.g. to be transparent, proportionate, accurate, etc), employers relying on their duty to comply with health and safety legislation as the condition for processing an employee’s health data do not need the employee’s separate consent to receive test results themselves.

As with temperature testing (see above), you will need to consider whether lateral flow tests are a necessary and proportionate means of achieving the desired health and safety objective. Is such an intrusive test necessary, or will temperature tests or the adoption of rigorous health and safety practices suffice? Given the intrusion associated with lateral flow tests is higher than a simpler temperature check, you should be able to justify any requirement to take such tests and set out your mitigation steps in a DPIA that can be used to demonstrate your adherence to data protection principles.

If you are going to take temperature readings or get employees to take medical tests, there are various things you can do to mitigate the data protection risks. These include:

  • Be 100% transparent with workers about how data is being processed what use will be made of it. Produce a standalone privacy notice or update existing notices to cover any such testing.
  • Don’t retain the information for any longer than needed. For example, do temperature checks on access and delete the data once it is no longer required. (Also, it is not necessary to record negative test outcomes.) Employers may wish to consider how long it is appropriate to retain test data given that it may be necessary for defending potential personal injury or employment tribunal claims.
  • Regarding any data that is stored, do not use it for any other purpose and restrict access to a small number of people who have a legitimate reason for such access.
  • Ensure you carry out due diligence on any vendors who are carrying out the testing for you and put in place agreements about how they will process the data.

A failure to comply with obligations could result in action being taken by employees. In the employment context, if an employee feels that their treatment constitutes a fundamental breach of contract, they could resign claiming constructive dismissal. Employees could bring complaints in the High Court alleging distress caused by a failure to comply with data protection obligations.

Alternatively, and more likely (as it would be much cheaper for the employee), complaints may be raised to the ICO, which has a range of enforcement actions available if it finds that a breach has occurred. These range from an enforcement notice requiring the activities in breach to end to a fine of up to 4% of worldwide turnover or £17.5m, whichever is greater.

For further details, see the article ICO releases guidance for employers on workplace testing by members of our specialist data protection group.

Do we need to collect evidence of employee consent to testing for covid or high temperatures and reporting test results?

Although there is no legal requirement to document employee consent for taking a temperature or covid test itself, employers may find it helpful to obtain written confirmation that an employee has read any workplace testing policy or communication and understands what is being asked of them and what personal data will be processed and shared.

In terms of reporting results, the government’s operating procedures states that once an individual has issued their consent following receipt of a data privacy notice, the organisation must store a copy of the consent for the duration of testing.

Do we need to declare lateral flow or PCR tests as a benefit in kind for employees?

No. HMRC initially stated that tests paid for by employers would be classed as a benefit in kind, which would have meant that employees would have paid additional income tax as the cost of the test would have been deemed as taxable income. However, after a U-turn, an exemption was made for the 2020/2021 tax year. The Spring Budget for 2021 has also confirmed that tests supplied or reimbursed by employers will not count as a taxable benefit in kind. 

The exemption does not apply to antibody tests.

Further information

Where can we find more information about testing to share with our employees?

Whilst asymptomatic testing has not so far been widely discussed, increasing awareness is likely in the coming weeks due to the introduction of voluntary testing in English schools. The government website is also directing individuals to ask their employers if they can receive a test.

To aid understanding and encourage participation in testing programmes, employers should be using trusted sources of information such as the NHS or government pages. These include:

  • This video from the Department of Health and Social Care providing an introduction to rapid flow testing
  • Government guidance on understanding lateral flow antigen testing for people without symptoms.

 

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