COVID and testing in the Workplace
The Health & Safety Executive has not made testing part of their workplace safety guidance. On the other hand, the government is encouraging employers to adopt workplace testing in their businesses, describing it as potentially making the difference between a business staying open and forced to close because of an outbreak.
Closing of a business can be a total nightmare. Just today I called my vets as my cat has an open wound and the answering service says “Due to all the staff having COVID the practice is closed until next Monday” They also provided an alternative vets to attend. This is happening far too often to many businesses.
One of the most important facts about coronavirus that has emerged is that about one third of infections are asymptomatic – so there could be people coming into your business who are infected with COVID-19 and don’t know because they have no symptoms. Naturally, this poses a transmission risk for you and everyone in your workplace. So, increasingly employers are looking at workplace testing as a way to protect their business and their employees.
So what can you do?
If you’re an employer, you have a few options:
1 – Use a third-party, private testing provider
2 – Use community testing facilities – asking your employees to get tested at a community test site
3 – If you’re a business based in England, and you registered before 31 March you can take part in the Workplace Testing Programme – on-site testing using tests
4 – If you’re a business registered in England with more than 10 employees and you registered before 12 April, you can order free home testing kits to give to your employee
There is no guidance on any sort on any compulsory employers could take. However, there is government guidance on introducing workplace testing. Plus, there’s some very detailed guidance from the Information Commissioner’s Office about the significant data protection implications of workplace testing.
What guidance on workplace testing is there for employers?
The guidelines are slightly confusing so here are a few questions that you may need to ask yourself:
1 – Why does your business need a testing policy?
2 – What are you trying to achieve?
3 – Which of the testing options outlined above will you use?
4 – Do you have the appropriate facilities to carry out workplace testing within your business?
5 – Who will the testing cover? All of your employees, or just some? Or anyone who comes into your workplace? Will it cover people working from home? If you’re only testing certain employees, are you certain you wouldn’t be breaching equality and discrimination laws by doing this?)
6 – How often will staff be tested? Government advice is twice a week
7 – What information will be given to employees, when and how?
8 – Communication and consultation will be important in rolling out any testing policy.
9 – Will testing be on a voluntary basis or will it be mandatory? Making this clear from the very start is essential, particularly if you plan on making testing mandatory.
10 – What will happen for individuals who don’t want to be tested? Will this impact where they’re able to work or what work they can do?
11 – What will you use the test results for? Will you share test result information and if so, who will you share it with?
12 – Who will report the test results?
13 – Data protection considerations are particularly important because if you’re carrying out testing, or even asking about testing results, you’re processing ‘special category data’ under the Data Protection Act 2018 which means you need additional justification for processing this data.
You can’t actually force someone to have a COVID test. Here’s what you need to consider when making testing mandatory for asymptomatic employees:
1 – Why is mandatory testing necessary?
2 – Is social distancing difficult to manage?
3 – Is there a lot of frequent contact with others?
4 – Does your risk assessment show that mandatory testing is a necessary control?
5 – Can you strike a balance between the needs of the business and the impact on individuals?
Employers have a legal obligation to protect the health, safety and welfare of their employees. Employees have an active duty to cooperate and help you in meeting that obligation. If you have an employee with symptoms, it would probably be reasonable to require that they be tested before returning to the workplace, to prevent harm to other employees. Refusal to be tested in these circumstances could be treated as failure to comply with a reasonable management instruction.
The importance of your risk assessment If you decide to draw up a testing policy, your COVID-secure risk assessment will be vital in showing that COVID testing is a necessary control to keeping your workplace COVID-compliant.
If an employee has received a positive test result, they must tell their employer. That’s because they’ve got a legal obligation to inform their employer if they’re required to self-isolate and are due to work somewhere other than home – such as in your workplace or on a different site. This obligation is triggered by Test and Trace informing them that they’ve either:
1 – Tested positive themselves
2 – Had a close contact test positive So, it’s reasonable to require your employee to notify you of a positive test result.
3 – They’ve received a negative test result or a close contact, have had a positive test result but are working from home.
What if a test comes back positive?
Remember, it’s an offence for an employer to allow an employee who’s tested positive for COVID-19 to carry out work activities anywhere other than where they are self-isolating.
Positive Lateral Flow tests must be confirmed with a PCR test –
1 – Do you know what an employee needs to do if their positive test comes back negative after a PCR test?
2 – Third party pressure – what if you want testing to be voluntary in your business, but your customers/clients/suppliers are insisting on compulsory testing?
3 – How do you manage this? Is there anyone who will be exempt from your testing policy?
4 – How will you ensure that your people will continue to adhere to your COVID-secure measures?
So many questions and policies you will need to consider and implement.
Chestnut Associates are always here to support your business when required – please do contact us today.