On 10 September the Department of Health and Social Care published guidance for employers on the legal obligations and matters that they need to consider if planning to introduce their own testing for COVID-19. With current infection rates increasing this is ever more important for employers to help protect business continuity. In addition, employers need to be up to date with guidance and legislation regarding self-isolation and sick pay.

Government guidance on testing

The guidance clarifies that employers should not be using the NHS Test and Trace service for testing their employees. That service is for those who display symptoms of COVID-19 or who have been advised to take a test by a medical practitioner or public authority. Employers wishing to provide a test to staff should consider adopting an alternative private provision. The guidance is also clear that adopting a testing process does not replace existing legal obligations relating to health and safety, employment law, data protection or equalities legislation.

The guidance covers the following matters:

  • The testing process: Before deciding to establish a testing programme employers should establish a number of factors including: who the testing will cover; how often staff will be tested; where the tests will be carried out; what are the arrangements for any individual who does not wish to be tested; how the employer will use the test results, (including how it will handle absence from work, self-isolation and non-discrimination); and whether the programme is compatible with the employer’s legal responsibilities.
  • Communicating with staff: Transparency is very important and the employer should set out clear information in a communication to staff covering issues such as whether the programme is voluntary, what are the consequences if staff decline to take part in the testing programme or decline to share the result of the test, and what staff should do after receiving a test result. Employers are also strongly advised to consult with their staff associations or unions ahead of implementing any policy.
  • Data Protection issues: The employer must ensure that it complies with the General Data Protection Regulation (GDPR) and the Data Protection Act 2018. Personal data must be processed lawfully, fairly and transparently and staff must be aware of what personal data is required and how it will be processed. The Information Commissioners Office (ICO) has published guidance on carrying out testing.
  • Contact Tracing of employees: The Government has developed NHS Test and Trace to ensure that anyone with symptoms of COVID-19 can quickly be tested to find out if they have the virus and help trace close recent contacts and if necessary notify them to self-isolate. However, this service will not generally contact employers unless two or more new cases are linked to a workplace. Employers may therefore want to introduce their own internal tracing systems. If however, there is more than one case of COVID-19 on the premises the employer must contract the local Health Protection Team to report the suspected outbreak. Employers should be clear how an internal test and trace scheme interacts with the NHS system and the right of the individual to receive Statutory Sick Pay (SSP). If the individual has been identified by an internal contact tracing and the NHS Test and Trace service has not contacted them then they will not qualify for SSP (see below). If the employer decides that the employee must self-isolate then, as far as possible, the employer should ask for the employee to work from home. If this isn’t possible, then the employer may have to keep the employee on full pay, unless their contract of employment allows otherwise or consider whether any contractual sick pay may be appropriate.
  • Communicating test results to staff: It is a legal obligation for an employer to directly share all results from tests with a member of staff who asks to see them. An employee should be aware of what will happen to their results, who they will be shared with and what the next steps will be. The employer should consider whether a health care professional is able to communicate the results, but in the absence of a healthcare professional then it should be someone who owes a similar duty of confidentiality to the employee. The employer should also consider what steps to take with communicating a positive virus test case to the rest of the workforce. Employers are encouraged to keep staff informed about potential or confirmed cases among colleagues. The ICO is clear that data protection law does not prevent an employer ensuring the health and safety of their staff, but as much as possible the employer should not name individuals and should not unlawfully share anyone’s personal data.
  • What to do with the results: The guidance clarifies that an employer can use the information to understand who in their workforce currently has COVID-19 and who needs to isolate following a positive test. However, an employer must ensure that any results comply with data protection requirements and do not result in unfair treatment of the employee. In addition, if an employee receives a positive antibody test result then employers cannot provide them with any immunity certificate and treat them as if they are immune.

The guidance applies to England only although equivalent guidance is to be published for Scotland, Wales and Northern Ireland.

Self-isolation

If an employer does decide to adopt some form of testing then the employee may be asked to self-isolate. However, regardless of an employer’s direction, employees may also have to self-isolate and not attend work following Government guidance which requires that an individual immediately self-isolates if:

• The individual has symptoms of coronavirus
• The individual has tested positive for coronavirus
• They live with someone who has symptoms or tested positive
• Someone in the support bubble has symptoms or tested positive
• The individual is told to self-isolate by NHS Test and Trace
• The individual arrives in the UK from a country with a high coronavirus risk.

Right to receive SSP

If the employee can work from home during the period of self-isolating then they should receive their normal pay. However, if they cannot work then the regulations relating to Statutory Sick Pay have been amended to ensure that employees qualify for SSP (subject to them satisfying other qualifying conditions) for all of the reasons listed above requiring self-isolation apart from where the employee is returning from overseas and there is no travel corridor in place. The usual rules regarding “waiting days” do not apply and SSP is available in these circumstances from the first day of absence.

SSP also does not apply where a child has been required to self-isolate from school and the employee is then required to stay at home to provide child care. Employees in those circumstances would have the right to take unpaid leave to deal with an emergency. However, this may not extend to the full 14 days isolation period. Employers and employees should then consider whether the employee can take parental leave or can take the time as paid holiday.

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