With the ‘Test and Trace’ service beset by problems, SA Law data protection and employment solicitor Chris Cook explores issues facing employers who wish to carry out their own tests for Covid-19 in the workplace.
Employers are under a legal obligation to ensure, so far as is reasonably practicable, the health, safety and welfare of all of their employees. This obligation covers:
- making the workplace safe;
- preventing risks to employees;
- giving employees sufficient supervision, training and instruction;
- providing employees with adequate equipment; and
- setting up safe working practices and ensuring employees follow them. Read more about measures and considerations for safely returning to work where possible here.
If an employer does not comply with this obligation, then it can face civil liability resulting in a hefty fine, as well as potential criminal liability depending on the nature and circumstances of any incident.
Increased employer obligations due to coronavirus
As a result of Covid-19 and the subsequent lockdown, the obligations on employers to support their employees and maintain a duty of care have increased and become more challenging to satisfy.
This is because the obligation includes both employees in the office and those working remotely.
So employers now need to consider remote risk assessments of employees’ home-working arrangements, as well as ensuring that the work premises are safe and clean to minimise the risk of Covid-19 infection.
The largest risk from an employer’s perspective is the possibility of Covid-19 transmission in the workplace resulting in the death of a colleague. Clearly, this would be tragic for the employee’s family and the workforce as a whole. It would also be highly damaging for the company’s reputation and would leave it open to criminal prosecution for corporate manslaughter if there were insufficient safety measures in place to minimise the risk of infection. Given the way in which Covid-19 spreads and the fact that a large proportion of the population may be asymptomatic, it is likely to be very difficult to be sure how and where a person contracted the virus. However, employers will need to follow every safety measure possible to ensure that the risk of contracting the virus in the workplace is as low as possible.
To comply with their health and safety obligations, employers should take all reasonably practicable steps to eliminate infection risks. The starting point is to identify the potential risk factors in the workplace and assess the degree of risk that they pose against the time, cost and physical difficulty of taking steps to eliminate them. Employers should consider bringing in the expertise of external health and safety experts to assist with this task.
Covid-19 is a risk that employers have never experienced before and they must therefore update their existing workplace risk assessments so that they remain suitable.
When updating their risk assessment, employers are under a duty to consult with their workers, and unions where applicable. Not only will this provide a platform for discussing measures, but it will also generate ideas from those on the ground and help build employees’ trust in the steps the employer is taking.
Given the pandemic is an evolving situation, employers should review risk assessments at very regular intervals.
If an employee believes that their employer has not complied with this obligation, they may raise their concerns with the Health and Safety Executive or the relevant local authority. This can lead to time-consuming investigations (which often go far beyond the scope of the original complaint) into the company’s health and safety measures.
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Can employees be forced to have coronavirus tests?
On 18 May 2020, the government announced that anyone who is symptomatic may take a coronavirus test. However, the Test and Trace service has been struggling to meet demand and the government has been vocal in urging companies to roll out their own workplace Covid-19 testing. As a result, many employers are looking into whether they can require their employees to undergo mandatory testing.
As there is no specific legislation on employee coronavirus testing, businesses must treat this in the same manner as any other medical test. This means that employees must give their consent to take the test and to disclose the result.
As testing measures are designed to protect staff from infection, consent should not usually be difficult to obtain. However, any such consent has to be informed, freely given and unambiguous, and employers must therefore not issue threats of suspension, disciplinary action or dismissal if an employee refuses to have a coronavirus (or any other medical) test. Employers may therefore encourage staff to take a coronavirus test, particularly if they are self-isolating with Covid-19 symptoms or a colleague has had a positive test. However, it is not possible to mandate compulsory regular company-wide coronavirus testing.
What to do with the results of workplace coronavirus tests
An employee will not be required to disclose a test result (albeit the employment contract and any company sick pay provisions may require disclosure if the employee has agreed to be tested).
Health records are a special category of personal data, so if an employee does disclose their test result, the employer must take additional measures to safeguard the data. This includes ensuring that any details provided remain anonymous and are not easily accessible or provided to others unless this is necessary.
It is recommended that coronavirus test results are reported to one member of staff, preferably a member of HR. They can then ensure the data remains secure while taking appropriate measures to keep employees safe should this be required.
Notifying employees of positive workplace coronavirus test results
The employer must notify employees of a positive coronavirus test in the workplace as soon as possible. However, it should avoid identifying the employee who tested positive (if possible) and not provide more information than is necessary.
This may be difficult in small workforces or if employers have put workplace ‘bubbles’ in place. However, in terms of data protection; the Information Commissioners Office has confirmed that it will take a pragmatic approach to data protection enforcement in light of the challenges which coronavirus presents.
If the employer considers it essential to tell employees who has tested positive, there may be grounds to disclose the test result under the special category data exemptions. For example, in the absence of explicit consent from the employee, it may be able to use the substantial public interest ground to disclose the data. However, I would recommend obtaining specific advice should this scenario arise.
Practical issues of workplace coronavirus testing
Regular company-wide virus testing will provide the employer with accurate information on the health of its employees. In turn, this will enable it to satisfy its health and safety obligations and potentially minimise sickness absence. However, there are practical issues with this approach:
- Lack of consent
As employers cannot enforce company-wide testing, employees can refuse to take the test. Although they are still under a duty to inform their employer of sickness, such refusals can undermine any attempt to reassure staff that the workplace is free from infection.
- Limits of testing
A standard coronavirus test will only show whether an employee had the virus at the point of time that they took the test. They could take the test one day and catch Covid-19 the next.
Private testing can allow employers to avoid the well-reported delays in obtaining a test and receiving the result via the Test and Trace system. However, there will still be a wait for the results, particularly if the employer arranges a home test for an employee who is self-isolating with symptoms. This will cause a knock-on delay before the employer can put appropriate measures in place.
Company-wide testing can be an expensive process, given that corporate Covid-19 tests currently cost approximately £100 each. The cost will therefore escalate quickly for employers that regularly test a large workforce. The government has given no indication yet that it will assist with the cost of testing. So companies that decide to provide regular testing will have to pay out significant additional sums at an already economically precarious time.
Given the significant practical and cost implications of coronavirus testing in the workplace, many employers are opting instead for temperature testing by way of non-contact thermometers. Although there has been debate about how effective this method is in spotting coronavirus, it is inexpensive and likely to offer some reassurance to staff. Temperature checks are still a form of medical test (even if non-contact), so it is still important to get permission from employees to carry out such testing and to keep the test results confidential and secure. Of course, a high temperature is not the only recognised symptom of coronavirus and arguably the biggest threat is those who are asymptomatic.
Contact tracing app
Scotland and Northern Ireland have already launched contract tracing apps, while an app for England and Wales was due to be launched just before publication of this article. Employers could introduce a requirement for employees to use the appropriate app. This would be particularly useful in workplaces where social distancing is difficult to guarantee. Although the employer can require employees to download the app on a device provided by the business, it cannot require them to download the app on a personal device.
Regardless of whether use of the app is voluntary or mandatory, it may be difficult to argue that the employee should use the app outside of working hours (which would presumably be required for the app to be effective). To require, or suggest, use of the app in employees’ free time is arguably an infringement of their right to privacy.
In addition, whether employees are willing to use the app will most likely depend on the employer’s approach to pay if they need to self-isolate (if they cannot work from home). If the employer insists on self-isolation being taken on reduced pay (such as statutory sick pay), as annual leave or on no pay if the employee does not qualify for sick pay, then this is likely to deter staff from using the app.
From a data protection perspective, the employer must have a lawful basis for processing any of the personal data obtained through the employee’s use of the app. It will also have to be satisfied of the data security of the app itself. As mentioned above, obtaining explicit consent from all employees to the processing of data in this manner is always the best option.
Reassure staff that it is safe to return
Many staff are likely to be concerned about returning to the workplace. It is important for morale to alleviate these concerns as much as possible.
The measures employers take to reassure staff will depend on various factors such as the size of the workforce, the organisation’s culture and the layout of the workplace. However, a key step will be to distribute information advising all employees of the new safety measures that are in place. This should include the employer’s Covid-19 risk assessment.
Employers should also have an open dialogue with their employees regarding their concerns about returning to the office, any testing programme and the options available to employees for self-isolation. Open channels of communication should help to provide some reassurance and allow the employer to consider any specific concerns, for example if an employee has a health condition and falls within the high-risk category.
Neither employers nor employees have been through a global pandemic before. We must therefore support one another through this difficult time and discuss topics constructively with employees, even if they are challenging.
This article has been reproduced by publication Employment Law Journal.
The government has published guidance on coronavirus testing for employers, which is available at here.