Testing for COVID-19 at work is set to play an important role in the UK 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
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 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 on testing staff for coronavirus, see here.
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 that 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 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 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.
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.
- The scope of testing: employees, contractors and visitors?
- Designate a workplace area suitable for testing and the correct storage 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 section below.)
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.
In a letter to businesses dated 25 February 2021, however, the Secretary of State for Business, Energy & 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. The support for tests may therefore be of little relevance for homeworking staff unless the government decides to continue it past 30 June 2021.
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?
No. Provided you have appropriate COVID-19 secure workplace measures in place, you 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 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. If they have no symptoms, this will be ten 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. 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.
Following changes at the end of January 2021, the government confirmed that where a lateral flow test has been taken in an 'assisted' setting, such as 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 & Trace system without any need for a follow-up PCR test. NHS PCR tests are not supposed to be booked in these cases. The employer could potentially pay for a private PCR test but, even if it came back negative, it is not clear 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 quite 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 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?'
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?
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. We understand 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.
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.
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.
Rather, the main legal risk arises in relation to 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.
There are also important data privacy considerations.
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 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 the virus. 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.
An employer can encourage employees to take the tests, but there are data protection risks in insisting that employees take tests and reveal the results. Requiring an employee to take an invasive test simply so that they can potentially return to work a few days earlier could be disproportionate, but the employer may be able to justify its policy on the basis of the need to safeguard the health and safety of others in the workplace.
If you are going to require employees to take a PCR test, it is important to do everything you can to minimise the data protection risks. You should also draft a data protection impact assessment setting out the ways in which those risks have been mitigated. (For further guidance, see below under 'What data privacy issues arise in respect of workplace testing'.)
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 GBP 120 a week. This is currently GBP 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 GBP 500 from the Test and Trace Support Payment Scheme.
As a means of encouraging uptake, some employers are implementing a workplace testing policy that 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 five to ten 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.
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.
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.
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 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 needs 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, 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.)
- 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 GBP 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 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.
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 guidanceon understanding lateral flow antigen testing for people without symptoms.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.