D-BRIEF – Employment & Pensions Blog: Test and Trace for Employers – Take away points

The Department of Health and Social Care (DHSC) has recently published guidance for employers on Covid-19 testing and contact tracing.

The guidance provides a useful insight into the test options available, but also confirms that whilst there are no obligations on employers to run their own testing programmes, they must not encourage individuals who do not display symptoms to obtain a test from the NHS Test and Trace service (due to limited resources). Employers are also reminded that internal testing programmes are not a substitute for the NHS Test and Trace but instead provide an added layer of reassurance for those in the workplace.

Here are some of the important takeaway points for employers to consider:

1. Pre-testing considerations

Prior to adopting a testing mechanism within their workforce, employers are advised to be clear on:

  • Who will be covered by the new mechanism? In other words, will the testing programme be limited to employees only or will it also include contractors or other types of workers etc.
  • What is the focal point of the programme? Will it be centred around members of staff who are symptomatic or asymptomatic?
  • How regular does testing need to be?  How often will staff need to be tested? Employers are reminded that a test result is accurate as at the point it is taken. In other words, a negative test does not mean that the employee is immune to contracting Covid-19 in the future.
  • What facilities are available to accommodate testing?  Do businesses have appropriate facilities to carry out testing?
  • Which test to use? There are currently 2 types of tests available – one to detect the virus and one to check for previous infections.
  • What arrangements are in place for those who refuse testing?
  • How will employers use the test results provided? In other words what policies are in place in respect of sensitive data handling, employment law implications and/or discrimination?
  • The costs associated with the new mechanism?

2. Communication is key

In order to mitigate the risks of growing disputes with staff, it is crucial for employers to ensure that they remain as transparent as possible with their staff regarding the implementation of a private testing service. Employers must be clear to their staff on:

  • The rationale behind adopting their own separate testing programme;
  • Whether the programme is mandatory or voluntary;
  • What the consequences are for staff who decline to partake in the programme or share their test results;
  • What steps staff must take upon receipt of their test results (whether positive or negative).

Employers are “strongly advised” to consult with staff associations and trade unions prior to implementing any internal test and trace policies.

3. GDPR Implications

Employers must abide by the GDPR and Data Protection Act 2018. By way of brief reminder, employers must ensure that they process data lawfully, fairly and transparently. Employers therefore need to ensure that staff are advised of what personal data is required for the purposes of this test and trace programme, what the data will be used for, who it will be shared with and how long the data will be retained for taking into account individuals’ rights. Employers must also consider their legal obligations under employment, equality and health and safety law.

4. Contact Tracing

The guidance also encourages employers looking to implement their own testing programmes to consider incorporating their own form of internal tracing. Of note however is that individuals that are identified by an internal tracing system and need to self-isolate will not be entitled to Statutory Sick Pay (as would have been the case had they been identified by NHS Test and Trace). As such, employers should consider what options are available to employees in that eventuality (i.e. ability to work from home, enhanced sick pay, statutory sick pay, or full pay). In practice, the more disadvantageous the outcome, the more likely staff will object to participating in any internal test and trace system and/or disclosing their test results.

If you require any assistance in relation to employment law, do not hesitate to contact a member of the team.

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