A question we’re seeing a lot recently is along the lines:
Is it legal for us to make it mandatory for all employees to take a lateral flow test twice a week and send the results to their line manager?
The short answer is yes, in my view an employer can make covid testing mandatory – it is a reasonable direction of the employer and ought to be followed by employees. There is some line of thought saying that it might be a ‘step too far’ but against the backdrop of various Government guidances and advices on regular testing, I believe a Judge faced with the question would consider it reasonable.
ACAS has some general information about COVID workplace testing, most of which ought to be obvious to most employers; speak to your staff before imposing a policy, work out the processes involved, answer their questions about what a positive test entails, and probably also consider questions of sick pay while isolating. Everything is best documented in a written covid policy.
The biggest legal issue that mandatory regular testing raises relates to data protection.
In holding, controlling and processing medical data such as flow test results or vaccination status, an employer is moving into hold sensitive (special category) personal data. Under the GDPR, extra burdens are placed upon you.
Employers must have a ‘lawful basis’ for collecting the data, in the same way that they would do for other categories of personal data. The Information Commissioner’s Office (ICO) have indicated that the ‘Public Task’ and ‘Legitimate Interest’ bases are likely to be apply when processing personal data in the context of workplace COVID testing, and so, providing they have considered whether testing is necessary, most employers should be able to rely on one of these lawful bases.
The ‘Employment Condition’ is also likely to provide a basis for employers conducting testing in order to comply with their health and safety law obligations.
The ICO has guidance on workplace testing. It makes clear that employers considering mandatory testing must conduct a data protection impact assessment (DPIA) focusing on testing and the new risks it will create.
If an employee refuses to give consent, or refuses testing, then an employer needs to consider its options. It could probably look to dismiss for failure to follow reasonable instructions, but the employee may say that it was not reasonable to hold sensitive personal data. However, if there is an ability to do their job from home, then it is less likely to be reasonable in dismissing someone.
So it could be a tricky issue.
If you’re considering introducing a mandatory testing policy or even a mandatory vaccine policy, then get in touch for expert help.
Call me on 0116 3667 900