Workplace testing for COVID: FAQs

10 FEBRUARY 2021

| 3 min read

In the light of the recent expansion of the Government’s support for workplace testing, we address some common questions employers ask us.

What is current Government policy on workplace testing?

The Government has recently announced that rapid lateral flow testing will now be available to employers with more than 50 employees, considerably extending eligibility, as the threshold was previously set at 250. The Government has also launched an online portal to enable employers to order the tests they need.

Rapid workplace testing is in addition to community testing and the testing of symptomatic individuals via NHS Test and Trace. The Government now hopes to build on the relatively small number of private sector employers testing employees who need to travel to work.

The aim of rapid workplace testing is to find and then isolate positive cases of asymptomatic individuals who would not have been identified by other test and trace measures, which rely primarily on testing symptomatic individuals. It does not replace the need to adhere to Covid-secure guidelines for the relevant workplace setting.

Workplace testing FAQs

What kind of testing is being conducted?

In the vast majority of cases workplace testing currently involves rapid lateral flow (LFD) tests of asymptomatic individuals who cannot work from home, typically twice a week. Results of these tests are typically available in about half an hour.

These tests are not designed the replace the more accurate PCR (polymerase chain reaction) test for symptomatic individuals. These tests take longer to process, as they require laboratory facilities.
What is the advantage of workplace testing for employers?

Workplace testing does not absolve employers from following the appropriate COVID-secure guidance. But it can provide employees with the assurance that additional measures are being taken to identify and isolate positive cases, particularly in higher risk work environments.

Workplace testing can also provide additional reassurance to workers who need to travel to work but who are worried about passing on the virus to family and friends.
Can workplace testing be made compulsory?

Since testing is a medical procedure, it cannot be made compulsory in the strict sense of the word. It may however be possible to make it a condition of continued employed in some specific workplace contexts.

Such a step would involve a detailed assessment of workplace risks and other ways to mitigate them. An appropriate policy would need to be developed, consulted upon and communicated with the workforce. Such a policy would need to be targeted at the areas of the greatest risk and appropriate exceptions would need be to be developed.

However, the Government’s approach to date in public sector workplaces and with community testing has been based on “strong encouragement”. The position is different when it comes to overseas travel, where submitting to testing is increasingly a legal requirement both before and after travel.
What are the data protection implications?

Data protection law requires employers thinking of implementing a workplace testing programme to consider why they need to collect personal information, and whether the same result could be achieved in a different way. The Information Commissioner’s guidance on workplace testing states: “If you can show that your approach is reasonable, fair and proportionate, then data protection is very unlikely to be a barrier.”

It is particularly important that employers make it clear to their workers how and why they need to process their testing data and what decisions they will make with that information.
What is the relationship between rapid testing and the self-isolation rules?

Legally, a person is required to self-isolate if they test positive, or if they have been told to self-isolate by NHS Test and Trace. In addition, guidance asks them to isolate if they or a member of their household have symptoms but are still waiting for a test result. Additional restrictions apply when travelling back to the UK from overseas.

Submitting to rapid testing is not currently an alternative to self-isolation for asymptomatic people. Rather, its aim is to identify additional positive cases and isolate them. However, the possibility of submitting to a daily test as an alternative to some kinds of self-isolation is being considered.

If someone tests positive after a LFD test they must self-isolate immediately. NHS guidance recommends that anyone with a positive LFD test should have a PCR test within 48 hours to confirm the result. If the PCR proves negative then the self-isolation period can be ended if the person is still asymptomatic.
What about NHS Test and Trace?

We understand that under current test and trace protocols, contact tracing will not be commenced following a positive LFD test until a confirmatory PCR test is obtained, though this is under review. However the legal duty to self-isolate arises as soon as a person is notified that they have tested positive, regardless of the kind of test.

In adddition, in order to comply with health and safety legislation, employers will need to exclude a worker from the workplace as soon as they are notified of a positive test of any kind. The same would apply to any fellow workers whom the employer is aware are close contacts of that person. In addition, it is a criminal offence for an employer to “knowingly allow” a worker who is required to self-isolate to attend the workplace.
What should staff who are self-isolating following a workplace test be paid?

Workplace testing does not in itself change the nature of an employer’s obligations towards staff who are self-isolating. In most cases staff who have tested positive will be eligible for statutory sick pay, but would not normally be eligible for contractual sick pay unless they are symptomatic.

However, it is common practice for employers implementing workplace testing to commit to paying staff who test positive their normal pay during the required isolation period. Failure to do so could affect the take up of testing for staff who cannot work from home. Such staff are not normally eligible for the furlough scheme, and the scope of Government support for such workers is limited, though this is under review.
What support will be available from the Government?

According to its press release dated 7 February: “NHS Test & Trace will support organisations to deliver scalable asymptomatic testing through provision of a digital solution, clinical protocol, supply of tests kits, guidance, training and framework for delivery.”

The press release confirms that these tests will be free until “at least” 31 March.

If you would like advice about implementing workplace testing or information on the job retention scheme, please do get in touch or find out more on our coronavirus hub.

Contact

Charles Pigott

Professional Support Lawyer
Charles Pigott

Professional Support Lawyer
- +(44)(0)1223 222411
- 07918287926
- Contact Charles
  
  Contact Charles Pigott
  
  * = required
  
  First name *
  
  Please enter your first name
  
  Last name *
  
  Please enter your last name
  
  Organisation
  
  Email address *
  
  Please enter your email address Please enter a valid email address
  
  Phone number
  
  Your message *
  
  Please add your message
  
  Send enquiry
  
  Mills & Reeve will use the information you provide in this form in accordance with our privacy policy. We may from time to time send you general updates by email or post that we think you will find of interest. This includes notification of upcoming event and updates or alerts containing relevant legal news. You can update your preferences at any time and will be able to easily unsubscribe from anything that you do not wish to receive.
  
  check
  
  Thank you
  
  Thank you for your enquiry. We will be in touch shortly.
  
  Close
  
  Reset form
  
  Close overlay
- Cambridge