Ask the expert: Can I test my employees for Covid-19?

Ask the expert

Question: Now that testing is becoming more widely available, can I test my employees for Covid-19 to try to protect my wider workforce? And how should I handle it?

Answer: Jayne Harrison, Head of Employment Law at Richard Nelson LLP, talks through the legality of testing employees for Covid-19 and answers the key questions which business owners might be wondering about right now.

“Testing is now available for essential workers and anyone with symptoms to assess whether or not they have Covid-19. Those who have symptoms (a high temperature, a new, continuous cough, or a loss or change to your sense of smell or taste) can request a test, or if an individual suspects someone in their household to have the virus, they may also request a test for this.

“Employers of essential workers are currently able to access tests for their employees through the NHS, but this is not available to all businesses.

“However, as the availability of tests increases, employers may wish to engage in testing their employees who are suspected to have Covid-19.”

How should I handle testing my employees?

“As an employer, you must be careful and honest with your employees about the possibility of a test. You should be clear about what the test will involve, what will happen with the information from the test and why you require them to take one.

“It is your duty to ensure the health and safety of each of your employees, therefore introducing tests to the workplace must be handled delicately.

“If one of your employees tests positive for Covid-19, you should avoid naming individuals to others. Employees should be informed of a potential or confirmed case of Covid-19 within the firm but only the essential information should be provided, to avoid creating tension in the workplace.

“You also need to comply with GDPR and the Data Protection Act 2018. That means handling any data lawfully, fairly and transparently. Personal data that relates to health is more sensitive and is classed as ‘special category data’ so it must be even more carefully protected.

“Data protection law does not prevent you from taking the necessary steps to keep your staff and the public safe and supported during the present public health emergency. But it does require you to be responsible with people’s personal data and ensure it is handled with care.”

What if my employees refuse?

“Employers can recommend for their employees to have a test but unless a worker is essential, the application for the test must be completed by the individual who will be taking it.

“The testing for Covid-19 is voluntary and therefore an employer cannot force their employees to take a test if they do not wish to.

“In most cases, an employer asking their employee to take a test would be considered as a reasonable management instruction. Employers may, therefore, feel it is unjust for their employees to refuse, but management should avoid escalating matters without first investigating as to why their employee might not wish to take a test, as the employee’s refusal may well be reasonable depending on the circumstances.

“Employers must understand the sensitive nature of this matter. If an employee refuses to take a test, or will not disclose their result, the employer should consider why their employee will not oblige rather than taking immediate action.”

How to communicate about testing

“The key for Covid-19 testing is for employers to approach the situation with sensitivity. Employees may not wish to take a test, perhaps if they have no symptoms or have had and recovered from the virus, and employers should be understanding of each individual case.

“Management should ensure transparency with employees from the beginning. Employers should be clear on their motivation for engaging with Covid-19 tests, explaining to their employees why it is important to check their workforce is clear.

“Employers must check their employees are comfortable with the procedure if they do agree to take a test. They should have a full understanding of where the data will be used and what will happen if their test results come back as positive.

“To ensure employee cooperation, employers should maintain clarity throughout the discussions. Where possible, you should have clear and accessible privacy information in place for employees, before any health data processing begins. The Information Commissioner’s Office (ICO) does acknowledge that in this exceptional time it may not be possible to provide detailed information but an employer should try to draft this.

“Before carrying out any tests, you should at least let your staff know what personal data is required, what it will be used for, and who you will share it with. You should also let them know how long you intend to keep the data for. It would also be helpful for you to provide employees with the opportunity to discuss the collection of such data if they have any concerns.”