9 September 2020
Due to the prominence given to coronavirus outbreaks in particular industries, employers may wish to consider putting in place a contingency plan in the event of an outbreak – and that plan may include testing staff for coronavirus.
Staff with symptoms
Any employee with symptoms of coronavirus should go home in accordance with government guidelines, arrange a test, plan to self-isolate for 10 days and contact the Test & Trace (TaP) team in their local area. Employers may find that other staff are in turn contacted by the TaP team and advised to self-isolate for 14 days.
If this means that a business or workplace becomes the focus of a cluster, they should get in touch with Health Protection Scotland and follow their advice.
Organisations which have found themselves in the centre of a cluster in this way have also been looking to test all or a significant number of staff for coronavirus. Testing staff without symptoms in this way does involve a number of employment law issues – primarily privacy and data protection issues.
Testing
As noted, employees with symptoms are eligible for an NHS test. Employers looking to carry out testing for employees without symptoms will need to source tests privately and should make sure they are done by a reputable provider and correctly administered.
Data protection
Employee consent is not the best basis on which to process for data protection purposes, but employees will need to agree to the physical element of testing – for example, employees cannot be forced to have their temperature taken - but refusing to agree may be a failure to obey a lawful management instruction. We recommend taking specific advice if any staff refuse to agree to testing.
Before starting testing and to minimise risks, we recommend the following steps are taken by employers:
Conduct an impact assessment
Conducting a data protection and more general impact assessment will allow you to be clear on first, why the testing is needed and second, that it is proportionate – i.e. that no other less intrusive means will achieve your aims. For example, could you ask all staff to take their own temperatures and call in sick if it exceeds the recommended level?
The assessment should be documented and retained and the rationale shared with staff.
This may be done as part of usual and coronavirus-specific health and safety consultation processes.
Process the data fairly
The data from the coronavirus testing will be ‘special category data’, and the usual process for assessing lawful grounds for processing applies.
The most suitable lawful ground for processing the data is to meet your legitimate interests. This should be cross referenced with the impact assessment, ensuring the impact on staff has been considered and documented and employee interests don’t outweigh the reasons for testing. The additional basis for processing the special category data is that it is necessary for carrying out obligations/exercising rights in the field of employment law, i.e. ensuring the health and safety of staff.
Engaging with this assessment process now means that if you are an employer unlucky enough to be in the middle of a cluster, you can move quickly to an appropriate and fair testing programme.
Sharing the impact and risk assessments and stressing the underlying aim of keeping staff as safe as possible will help you to show you are complying with health and safety obligations and mean staff are more likely to accept it.
When handling the data from tests, employers must comply with usual principles – i.e. only process what is necessary and keep it for no longer than necessary in a secure way. Usually this means not keeping normal test results.
Issue a temporary update to employee privacy notices
This will cover:
- What personal data will be processed
- What it will be used for
- Who it will be shared with (keeping an eye on the requirements of the TaP regime)
- How long it will be kept
- What decisions will be made as a result of the tests
- The timescale for the testing
The ICO’s guidance is also helpful – available here.
Other measures
Other measures may help minimise the impact of being at the centre of a cluster or reduce the number of tests which need to be carried out, such as:
- keeping records of employee attendance and groupings for 21 days; or
- making sure employees only work in specific teams; or
- splitting shared spaces so each area is only used for a specific team.
Written 26 August 2020 -The above is provided for general guidance only and employers with specific queries are encouraged to get in touch with one of Lindsays Employment team.
