What factors do employers need to consider in relation to testing employees for Covid-19?

The below answer is for guidance purposes only and specific legal advice should be sought if your organisation is considering implementing Covid-19 testing.

There are various factors for employers to consider in relation to making employees take a Covid-19 test, for example:

• Data protection implications;
• Employee relations; and
• Health and safety concerns.

Generally, employers will not be able to compel employees to undergo a Covid-19 test and it is unlikely that there would be a contractual basis for carrying out the test. However, employers in sectors such as health and social care would likely find it easier to justify compulsory testing on health and safety grounds.

Employees may object to taking a Covid-19 test (especially if they are not showing any symptoms and do not believe they have been at risk of contracting Covid-19) on the basis that it is an invasion of their privacy, particularly as the test can be quite uncomfortable involving a nasal and throat swab.

However, employers could try and stipulate that the requirement to be tested for Covid-19 amounts to a reasonable management instruction on health and safety grounds. If employees refused to be tested, employers may deem the refusal a breach of the implied term to follow reasonable management instruction and treat the refusal as an act of misconduct via disciplinary proceedings. This could prove difficult to justify given the intrusive nature of the test and also if the test is un-related to employees’ duties. In these circumstances, employers may wish to include testing within a Covid-19 related policy or perhaps amend employment contracts to include compulsory testing.  

From an employee-relations perspective, employers may wish to meet with employees to try and understand their reasons for refusing the test and see if a compromise can be reached. This is a challenging time for both employers and employees and good communication is paramount.

The ICO has confirmed that there is nothing preventing employers from testing employees from a data protection perspective, provided that there is a good reason for doing so, e.g. keeping employees or the public safe.

However, employers should be aware that as the data obtained from the tests will relate to employees’ health, it will constitute special category/sensitive personal data under the GDPR. This means that employers need to have a lawful basis under both Article 6 and Article 9 of the GDPR in order to lawfully use the data. The ICO guidance states that employers may rely on the legitimate interests basis (Art 6(1)(f), GDPR) and the additional employment basis i.e. health and safety of workforce (Art 9(2)(b), GDPR).

It is also prudent for employers to carry out a data protection impact assessment (DPIA) to assess whether the testing is necessary and proportionate and to mitigate any risks associated with the testing. For example, employers whose workplace makes it difficult to implement social distancing or where employees are working with vulnerable individuals may find it easier to justify testing employees.

Employers must ensure that decision to carry out Covid-19 tests is applied consistently to the workforce in order to mitigate any risk of discrimination.