As the coronavirus continues to affect our daily lives and disrupt businesses, many employers are considering introducing COVID-19 testing for their workforce.
The government is clear that NHS coronavirus tests should only be used by those who are displaying symptoms, but an employer can choose to operate their own private internal testing programme if they wish.
However, before implementing it there is much to consider and employers should tread very carefully.
Processing Personal Data
Firstly, health information such as a COVID-19 test result is classed as special category data under GDPR rules, and can only be processed in limited circumstances, such as to allow an employer to comply with their legal obligations (for example, in relation to health and safety) or where it is in the public interest.
In order to demonstrate that it is a necessary and proportionate means of meeting these goals, employers should carry out a data protection impact assessment before embarking on employee testing and identify any risks and consider how best to overcome them.
The health information collected must be held very securely.
Who to Test
Employers should also think carefully about which staff to test, for example those who are working on site in close proximity, how often testing will be carried out and what they will do with the results.
In that respect, an employee’s personal data should not be shared with other members of staff and so those with positive test results should not be named. They also must not be discriminated against or treated less favourably simply because of a positive test result.
Communication
The decision to implement a testing regime will need to be carefully communicated to staff. They will need to be told:
- The rationale behind introducing testing
- How the test results will be used
- Who the information will be shared with; and
- Whether it is mandatory to be tested.
In the vast majority of cases, it is unlikely to be appropriate to take disciplinary action against an employee for refusing, but it is not expressly prohibited.
Alternatively, employers might consider offering antibody tests to employees. This would indicate whether they have previously had the virus, but it does not mean that they are immune to a future coronavirus infection.
At present it is not clear how long coronavirus immunity lasts and so antibody tests may well be of minimal benefit to employers in any event.
There is clearly a lot to consider and employers should take specialist advice before introducing a private testing regime.
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