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24 March 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 should take on board before rolling out a workplace testing programme.
On 6 March 2021 the government announced that all employers with staff unable to work from home are now eligible to sign up for free lateral flow tests for their workplace, scrapping the previous 50-employee restriction.
Employers have until 31 March 2021 to register for free test kits that will be provided free of charge until 30 June 2021.
The government has published workplace testing guidance for employers setting out the options for workforce testing, alongside more practical setting-up advice. The Advisory, Conciliation and Arbitration Service (Acas) has also provided advice on testing staff for COVID-19.
The government is reviewing whether COVID-19-status certification could play a role in reopening the economy. COVID-19-status certification would be available to both vaccinated people and unvaccinated people who have been tested.
Should employers 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 COVID-19.
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 that COVID-19 is present. After the swab from the tester is put into a special solution, it is 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 is the government encouraging lateral flow testing and how effective is it?
The well-known message that one in three people can have COVID-19 without displaying any symptoms is the main reason that 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 otherwise been undetected 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 COVID-19. 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 COVID-19.
No test is perfect and lateral flow testing of the workforce does not mean that employers 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 has given businesses until 31 March 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 on-site 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.
What issues must employers consider for on-site testing?
Will government support for lateral flow tests be extended to businesses with staff who can work from home?
No announcement has been made on this yet and the online portal states that registration is for organisations with employees who cannot work from home.
However, in a letter to businesses dated 25 February 2021, the secretary of state for business, energy and industrial strategy stated that the government was providing tests for "staff that cannot currently work from home, or who will return to the workplace as the economy opens up as set out in the Roadmap announced on 22 February ".
According the roadmap out of lockdown in England, set out in the government's COVID-19 response Spring 2021 document, those who can work from home should be doing so until at least 21 June 2021. Therefore, the support for tests may be of little relevance for homeworking staff unless the government decides to continue it past 30 June 2021.
If employers implement workplace lateral flow or temperature testing, can they relax some of their other safety measures?
No, temperature testing will not pick up any asymptomatic cases and even lateral flow testing cannot be used as a reason for relaxing other safety measures at present. 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 that the accuracy of tests varies 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 must ensure that they have consistent and strong messaging on the role that it plays in their risk assessments and keeping the workplace COVID-19 secure. There is a danger that ill-informed employees, on receiving a negative test result, may assume that they do not have COVID-19 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.
Must employees isolate pending results of lateral flow tests?
No, provided that employers have appropriate COVID-19-secure workplace measures in place, they can 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 employees receive a positive result?
They must immediately return home to self-isolate for the period notified to them by the National Health Service (NHS) Test and Trace system. If they have no symptoms, this will be 10 days from the date of the test. 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. Employers should take care to avoid disclosing an individual's identity to their colleagues if they do test positive for COVID-19, although in some circumstances this will be unavoidable.
Following changes at the end of January 2021, the government confirmed that where a lateral flow test has been taken in an assisted setting (eg, where testing is carried out at the workplace under the supervision of a trained operator), there is no need to take a PCR test to verify the result. The lateral flow test will trigger an immediate official notification to self-isolate from the NHS Test and Trace system without any need for a follow-up PCR test. NHS PCR tests are not supposed to be booked in these cases. Employers could potentially pay for a private PCR test but, even if it came back negative, it is unclear that this could necessarily be taken to be a withdrawal of the earlier notification to self-isolate (which legally still stands unless it is officially withdrawn). In any event, the current advice is that false positive results are rare.
In contrast, where an LFD test is carried out entirely by an individual themselves (by swabbing without supervision and personally reporting the test result), a positive result will need to be verified with a PCR test.
A high temperature reading does not trigger a legal duty to self-isolate, but employers should refuse entry to the workplace and ask the employee to return home and book a PCR test via the NHS (for further details please see "Can employers insist on employees taking a PCR test if they have symptoms?").
For the impact on pay, please see "Should employers amend any of their sickness policies?".
Must vaccinated employees continue to use lateral flow tests 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 unknown at present.
Can employees use lateral flow tests themselves at home?
This depends on the licence 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. The government is using the Innova brand test kits, which received approval for self-administration at home in December 2020, for schools. It is unclear whether similar kits will become widely available for workplace usage. Other lateral flow tests are in the process of being approved as home test kits, so this is likely to be an option in future for interested businesses.
In the meantime, organisations wishing to implement a test that employees can do unassisted from home would need to fund private PCR tests, which are more accurate but have a longer turnaround time.
Can employers make asymptomatic lateral flow workplace testing mandatory?
This is possible, but not without risk. While mandatory testing is not as contentious as mandatory vaccination, it still requires individuals to undergo an invasive and unpleasant test in the chance of identifying positive cases.(1)
It is unlikely that employees 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.
Rather, the main legal risk arises in relation to employees with more than two years' 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 fallible 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.
There are also important data privacy considerations (for further details please see "What data privacy issues arise in respect of workplace testing or extra precautions such as temperature testing?").
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 that the risk of a genuine discrimination claim is extremely low in relation to testing.
As the pandemic continues to evolve, the answer to this question may change particularly in cases where employees have refused both vaccination and testing. As workplaces reopen, it may be possible for employers to insist on employees' participation in workplace testing as a condition of returning the workplace, with those who do not wish to participate being asked to continue working from home.
Can employers insist on employees taking a PCR test if they have symptoms?
Anyone with COVID-19 symptoms can now ask for an NHS PCR test to check if they have COVID-19. If someone has the test and it is negative, this may enable them to return to work more quickly as soon as they are feeling better.
Employers can encourage employees to take the tests, but there are data protection risks in insisting that employees take tests and reveal the results. Requiring employees to take an invasive test simply so that they can potentially return to work a few days earlier could be disproportionate, but employers may be able to justify their policy on the basis of the need to safeguard the health and safety of others in the workplace.
If employers are going to require employees to take a PCR test, they must do everything that they can to minimise the data protection risks. Employers should also draft a data protection impact assessment setting out the ways in which those risks have been mitigated (for further details please see "What data privacy issues arise in respect of workplace testing or extra precautions such as temperature testing?").
Can employers 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 – employers' 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:
If temperature testing is necessary, employers should 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 employers taking a daily record of each employee's temperature.
Should employers amend any of their sickness policies?
Employers which want to encourage high levels of testing may need to consider whether 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 the company sick pay policy as they are not actually absent through illness. Some companies may have already amended their policies to cover COVID-19 self-isolation (including situations for household members testing positive), but it is a necessary consideration for businesses which have not done so and want to introduce workplace testing.
Employees 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 that they are meant to be in work) for those who are off sick or self-isolating due to COVID-19, provided that 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 while 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 (eg, being used in a Bradford Factor calculation or triggering an employee into an attendance management review).
What should employers 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 that employers may need to call on employees at short notice to cover someone's absence or redeploy them at short notice to different locations. Employers should consider building this level of flexibility into employees' contracts if they do not already have it.
Can employers place employees who test positive on furlough?
Furloughing employees who test positive for COVID-19 is not endorsed by the current guidance on the Coronavirus Job Retention Scheme, which states 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. Arguably, employers which 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 does not result in the employee spending more time on furlough than they would otherwise have done. However, this is an untested and risky area and employers would be well advised to seek advice on their particular circumstances given the increased scrutiny of the use of the furlough scheme.(2)
Must employers 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 therein. The position for voluntary testing is less clear, 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 need not isolate for 30 minutes waiting for results, so only the time taking the test will be lost (approximately 5 to 10 minutes). Therefore, the cost is 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?
Employers should take advice if employees are receiving the national minimum wage (NMW) and are testing from home outside of working hours (eg, on a Sunday evening before attending their shift on Monday morning). This practice primarily allows employers 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.
This is unlikely to be an issue for most employers unless the LFDs provided by the government for on-site workplace testing are, in future, able to be used from home.
Must employers consult with employees before introducing a workplace testing scheme?
Yes, government guidance emphasises that employers have a duty to consult their people on health and safety.(3)
Acas's guidance also recommends consulting with employees as a matter of best practice before introducing any testing regime to cover:
Should employers have a workplace testing policy?
Yes, employers will want to explain why they are asking employees to be tested along with the benefits in a detailed internal communications plan. This should cover why the business has decided that 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 (eg, if sickness policies are being amended). Equally, a reminder that all other COVID-19-secure guidelines remain in full force is advisable, to address any mistaken assumptions that testing replaces or relaxes such restrictions.
What data privacy 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 employees' 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 them 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 that they comply with their obligations (eg, to be transparent, proportionate and accurate), employers relying on their duty to comply with health and safety legislation as the condition for processing employees' health data do not need employees' separate consent to receive test results themselves.
As with temperature testing, employers 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 that the intrusion associated with lateral flow tests is higher than a simpler temperature check, employers should be able to justify any requirement to take such tests and set out their mitigation steps in a DPIA that can be used to demonstrate their adherence to data protection principles.
If employers are going to take temperature readings or get employees to take medical tests, there are various things that they can do to mitigate the data protection risks, including:
Employees may take action if their employer fails to comply with their obligations. In the employment context, if employees feel 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 employees), 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 £17.5 million, whichever is greater.(4)
Must employers 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 2021 has also confirmed that tests supplied or reimbursed by employers will not count as a taxable benefit in kind.(5)
The exemption does not apply to antibody tests.
Where can employers find more information about testing to share with employees?
While 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 whether 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:
For further information on this topic please contact Laura Farnsworth or Lucy Lewis at Lewis Silkin by telephone (+44 20 7074 8000) or email (email@example.com or firstname.lastname@example.org). The Lewis Silkin website can be accessed at www.lewissilkin.com.
(1) For further information please see "Coronavirus vaccination - FAQs for employers".
(2) For further information please see "Furloughing employees - FAQs for employers on the coronavirus job retention scheme".
(3) For further information please see "Coronavirus – FAQs on managing a safe return to work".
(4) For further information please see "ICO releases guidance for employers on workplace testing".
(5) For further information please see "Budget 2021: Everything and nothing is changing".
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