New Covid-19 Testing Guidance for Employers

The Department of Health & Social Care (DHSC) has, on 10 September, published guidance for employers on Covid-19 testing.

The guidance covers the testing process, including collection of results and communicating results to staff, as well as what the employer or business may do with the results.

The DHSC also makes clear that healthcare providers who wish to provide a test to asymptomatic staff must not advise them to get a test from the limited supply offered by Test and Trace, but may offer alternative private provision.

Establishing a testing programme

Before deciding to establish a testing programme, the business should be clear on:

• who the testing will cover (e.g. all directly employed staff, or also individuals working onsite such as contractors);
• what the focus of the programme is – staff with symptoms or without symptoms;
• how often staff will be tested;
• appropriate facilities for carrying out the tests;
• which test should be used (virus tests, which are designed to detect active infection, or antibody tests which only reveal evidence of previous infection);
• what the arrangements will be for any individual who does not wish to be tested;
• how the business will use the test results, including its policies on matters such as handling health information, absence from work, self-isolation, diversity and equality;
• the compatibility of the programme with its legal responsibilities to staff including under health and safety, equalities, data protection and employment law; and
• the affordability of implementing a testing programme.

Communication with staff

Communicating the intention to test staff is important and businesses are strongly advised to be transparent about why they setting up a testing programme, whether the programme is voluntary or mandatory, and what the consequences are for staff who decline to take part in the testing programme or decline to share the result of a test.

Data Protection considerations

Businesses should also bear in mind that they must comply with the GDPR and Data Protection Act 2018, and so must:

• process all data lawfully, fairly and transparently;
• ensure staff are aware of what personal data is required, what it will be used for, and who it will be shared with; and
• make staff aware of how long they intend to keep the data for.

The DHSC also provides details on selecting and procuring test kits, collecting Covid-19 samples to test, handling samples in transit and collection of results.

Use of Results

Businesses can use virus test results to understand who in their workforce currently has Covid-19 and who needs to isolate following a positive Covid-19 virus test. They can use antibody test results to understand the percentage of their workforce that has already potentially had Covid-19.

Businesses must ensure that any lists of members of staff made from collecting their sensitive health data, including their test results, do not result in any unfair or harmful treatment of employees.

It would also not be fair to use, or retain, information for purposes staff members were not told about or would not reasonably expect.

If a member of staff receives a positive antibody test result, the business cannot assure them that they are immune, or allocate to them any form of immunity certification, such as an ‘immunity passport’.

Finally, businesses should not treat staff who have had a positive antibody test any differently from staff who do not.

The DHSC’s full guidance can be found here.

For further information on the new Covid-19 testing guidance for employers, and how it can be implemented into the workplace, please contact a member of the Employment Team.

For more information contact Ellen Parker.