Employment law expert Ellis Whittam answers frequently asked questions around the difficult area of employee testing for coronavirus (Covid-19).
Returning to work over the coming weeks and months is going to be a challenge. At times it may also be contentious.
It will be a real challenge for employers to keep their workplaces safe during the crisis.
Similarly, employees will need to feel safe enough in the workplace to turn up and work given the potential impact on them and their immediate family if they contract coronavirus (COVID-19).
Employee testing is something that has happened in other countries and is a step many employers are looking to adopt. Here we deal with some common questions.
Q. Can I ask employees to ‘self-declare’ COVID-19 symptoms?
Yes. Whilst asking about personal information can sometimes be a challenge, in this instance, it would be permissible to help protect the health, safety and welfare of others.
Unfortunately, at the present time, there is no way to compel an employee to provide this information, save perhaps making it a disciplinary offence not to. The difficulty here would be policing such a regime and there would be questions about whether it would be reasonable to take disciplinary action against someone in these circumstances.
If you send an employee home because they have, or you suspect they have COVID-19 symptoms, that absence would qualify as sick leave and statutory sick pay (SSP) would be payable from day one of absence.
Q. Can I ask my employees to undergo temperature checks before starting work?
There is no easy answer to this. It should be noted that temperature checks are not a reliable way to detect the disease and are currently not recommended by the government although they have been used in other countries. Consent is an issue here as the test could only be taken with the employees’ agreement.
Again, questions arise as to whether you can force a test to be taken. As stated above, your only real option here is to make a refusal a disciplinary offence but the same difficulties arise.
If a test is carried out, the result of it will be special category personal data and that can only be processed on certain grounds under the GDPR. If you use an occupational health professional to conduct the test, that will be compliant with GDPR.
However, if you don’t, the position is less clear. It may be argued that such a test is necessary to help ensure the health and safety of workers, but this is unchartered territory. Employers would also need a short policy document on GDPR compliance relating to the test results if they intend to carry out temperature checks.
Q. Can I force employees to take a COVID-19 test if available through the Government?
Again, this is not something that an employee can be compelled to do but it may be reasonable in certain circumstances. For example, it may be justified in specific sectors (healthcare, for example, especially when dealing with vulnerable people).
Q. If an employee gives a positive test, what can you tell the rest of your workforce?
Certainly, employees should be notified of the risks of infection as soon as possible. However, revealing the identity of the employee who has tested possible may be a step too far in most cases.
The Information Commissioner’s Office has provided a bit of guidance on this, confirming that you should not provide more information than is necessary and, in most cases, it will not be necessary to name individuals.
This article is from Ellis Whittam’s coronavirus hub, which is available free of charge upon registering.
David Nunn is Content Manager at AAT.