Employers cannot force their staff to test a COVID test as the regime is currently voluntary. They also cannot force an employee to download any app relating to the pandemic or similar health-tracking device. However this is similar territory to that which applies to drugs and alcohol: a refusal may be considered a refusal of a reasonable management request and maybe even against a term of the contract of employment. This may result in disciplinary action, however it would depend on individual circumstances and the reason for refusal.
What Employers Can Do
If employers are keen to test their staff, then a balance has to be struck between an employer’s obligations and interests and that of the individual. Any workplace testing regime has an impact on GDPR and other obligations an employer has towards its employees
GDPR obligations
Information on employees’ health is a special category under GDPR and so there are especially stringent rules. Employers must be able to identify what is known as an ‘Article 9’ condition for the processing of such data which justifies the collection and processing of such data. Employers have two relevant conditions to consider:
Employment condition
- The processing of such data is necessary for a specific purpose, such as ensuring health, safety and welfare of employees.
- This may be applicable to tests carried out under current health and safety regulations
Public health condition
- The processing of such data is for reasons of public interest in the area of public health. The processing must be carried out by a health professional (or by someone under such an individual’s authority) and by someone who owes the subject a legal duty of confidentiality.
- Employers would have to argue that testing would help stop the spread of the virus by running their own programmes and reporting the results to the public health authorities. There must however be safeguards in place in order to protect confidentiality.
Other factors to consider
It may be easier for some employers to argue that testing is mandatory than others. Those with public facing roles, or where the very nature of the work means that social distancing is not easily achieved, would be more justified in requiring individuals to take a test.
Furthermore, it is more reasonable for an employer to require an individual exhibiting symptoms to take a test than it is to require an asymptomatic person to do so. This is because with the latter, there is a clear health and safety obligation to honour, whereas with the latter, it may be harder to rely on that obligation. An employer would also be expected to consider other measures to ensure Covid-safety in the workplace, such as spaced-out work stations, protective screen and masks. Where working from home is possible, it is more likely to be unreasonable that workers are required to be tested by their employer.
Overall
Before any testing is carried out, employers should be clear, open and honest with employees in regards how their data will be processed and why it is needed. While employers may retain data as to which employees have tested positive for the virus, such lists should not result in unfair or harmful treatment of those employees. Employers should be careful to ensure that all testing programmes and applied to all members and levels of staff, so as to avoid allegations of discrimination or victimisation.
It would also be advisable to discuss with employees any concerns they may have the process in order to increase the likelihood of compliance. Contact John Szepietowski of Audley Chaucer to explore these matters in greater detail.
Alina Dewshi
