COVID-19: Government urges employers to test staff: deadline to register for free kits extended from 31 March to 12 April 2021

30 MARCH 2021 UPDATE: The deadline to register for free kits has been extended to 12 April 2021.  In addition,  employers with 10 or more employees are now able to order home test kits online to distribute to their employees.

6 MARCH 2021 UPDATE:  The Government has today extended the offer of free testing kits to all businesses, including those with fewer than 50 employees.

Provision for COVID-19 testing in the UK has been  ramping up noticeably since the start of 2021 and,  in the last few weeks,  part of the government’s focus has turned to testing in UK workplaces.

The Spring Response Roadmap published last week says that workplace testing will be an important mitigation as business starts to reopen from 12 April 2021.  It also says that the government will update the COVID- Secure guidance to provide further advice on how businesses can introduce regular testing to reduce risk, but this hasn’t happened yet.

Following publication of the Roadmap,  the Department for Business, Energy and Industrial Strategy has now written to all businesses registered in England to ask them to test staff – initially those who cannot work from home, and then those who return to the workplace as the economy opens up.   The government’s Guidance for Employers on COVID-19 Testing has also been updated recently and now says that the government “wants as many employers as possible to sign up to regularly test their employees.  This will reduce the risk of transmission among those who cannot work from home and ensure vital public and economic services can continue”.

Coupled with this request for support for testing from employers,  the government is offering to provide employers with 50+ employees with testing kits free of charge until 30 June 2021.  To access these kits, firms must register through an online Government portal by 31 March 2021.

Employers with fewer than 50 employees are being encouraged by the government to inform their employees of the ability to access community testing sites which provide lateral flow tests for asymptomatic individuals who are not able to work from home.

Legal considerations

Although the government backing for workplace testing is a welcome development in supporting business operations during the pandemic,   employers must, nonetheless, be aware of their legal obligations when designing and implementing a testing programme  –  health and safety laws,  data privacy laws,  employment laws and discrimination laws will all come into play.   Particular matters to consider, and to address in a detailed workplace testing policy,  will include –

  • Updating the business’s assessment of the health and safety risks of COVID-19 to assess if testing is a legitimate means of managing the risks of Coronavirus in the workplace.  If so, considering whether testing should be voluntary or compulsory.
  • Assessing whether there are lawful grounds for processing health information identified through a data protection impact assessment.    Data privacy is a significant issue in terms of employee testing and the ICO has issued Guidance for employers.  The ICO’s position is that while data protection law does not prevent employers from taking the necessary steps to keep staff and the public safe, employers must be aware that information relating to health is “special category data” which means that there are rigorous requirements to be met for lawful processing.   In addition, an employer must ensure that where it is processing personal information, that this is done lawfully, fairly and transparently.
  • Determining what the arrangements will be for any individual who does not wish to be tested. This will differ depending on whether the employer’s testing programme is voluntary or mandatory.
  • Deciding whether employees will or will not be required to share their test results with the employer. In this context, bear in mind that those who test positive will be under a legal obligation to self-isolate and to tell the employer that they are doing so.  As such, it may be preferable to rely on employee self-isolation notifications rather than managing the data privacy obligations (and risks) related to test results.
  • Deciding what the leave and pay arrangements for employees who test positive will be – employers will be obliged to pay statutory sick pay, but a number of employers are offering full pay to encourage employee engagement with their testing programme.
  • How the legal duty to report test results to Public Health England (PHE) will be fulfilled.