Workplace covid testing guidance for employers
The expansion of free workplace covid testing is intended to help find cases which would otherwise be undetected. Although the tests have weaknesses, they do have a place in helping to control the virus.
Employers can register to order free test kits online. However, there are important steps for employers to consider. These are:
- Plan the logistics – the tests should be taken twice a week and need careful management
- You are responsible for storing and using the tests properly – regulations apply in this area
- Test results are sensitive data and specific GDPR laws apply to using and storing the data
- The Information Commissioner’s Office has published a detailed guide for employers
- To comply with the GDPR you must clearly communicate how and why you are testing with employees – the government has released a helpful checklist of items to consider
- You must report positive results to Public Health England with some specific details required
- You must record and report adverse incidents (e.g. faulty test kits) to MHRA
Planning the logistics
Control of Substances Hazardous to Health laws apply to the processing and handling of testing kits and samples. As a minimum, you will need to conduct a risk assessment. Free risk assessment templates are available online from the Health & Safety Executive.
If you are testing at your site or office, you should consider providing a private space. You will need to dispose of used tests kits which could be infectious. Clinical waste collection services are commonly available from many cleaning contracting services. If you cannot find a contractor the law says you must conduct a risk assessment and act according to the risks you identify.
You will need to consider how you will distribute, use, track and record test usage amongst your workforce. This is required because you must by law record and notify Public Health England and the Medicines and Healthcare Regulatory Agency in the event of positive results and/or serious adverse events (such as a test kit failing to work).
Specific regulations apply to the storing and usage of in-vitro diagnostic medical devices, which will become your responsibility if you order the test kits.
Anyone supporting or co-ordinating a testing programme at a workplace will need good PPE. It is worth making sure you record and assess the instruction and training in how to use it properly.
Processing test results involves specific legal responsibilities for employers. The Information Commissioner’s Office has published a detailed guide for employers.
You may need to consider amending your data privacy policies before starting a testing programme. You will need to carefully consider how you will track, record, process, store and protect test results.
The need to protect the health and safety of your workforce is a lawful reason to conduct a testing programme and process the data. However, that does not remove the obligation to ensure the processing of data is conducted responsibly and fairly.
It is unfair to use or retain information for purposes staff members were not told about or would not reasonably expect. You can only access test results with informed consent.
You must store results data securely, protect it from unauthorised access and ensure that you do not discriminate against anyone because of the data you hold. Perceived discrimination can carry as much weight in employment law as physical discrimination.
Your legal obligations
Aside from employment, equalities and data protection laws, covid workplace testing programmes fall across a number of additional legal responsibilities for employers. These are summarised online by the government.
The government clearly states that it is important that you continue to comply with your existing obligations and take independent legal advice if you are in any doubt about what those obligations are and how they might apply to you.
Our guidance relating to the risks associated with lateral flow tests for employers is also covered in our article on “The Lateral Flow Test Debate”.
Testing does not replace risk management
Because the tests have known weaknesses they are probably best considered as ‘red light’ tests – if they come up positive you are potentially infectious to others and you must self-isolate.
However, they are not ‘green light’ tests. If the test is negative, you cannot be certain you are not infectious and you must continue to take the usual precautions.
It is essential that this should be made clear to all employees if workplace covid testing is introduced. Testing is not a substitute for infection control measures.
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