Testing the temperature for a return to work

By Kathleen Heycock and Ian De Freitas Partners at Farrer & Co LLP

The Government has confirmed that from 1 August 2020 people can come back into the workplace at the “discretion” of their employers, pushing the responsibility to them to decide whether their staff can safely swap their kitchen tables for their office desks.

This article looks at what employers should be thinking about when considering whether to introduce coronavirus testing and / or temperature checks for their employees – a question which brings health and safety, employment and data protection considerations into play.

Does the Government require testing and temperature checks?

Quite simply, no. In fact, the Government guidance on working safely during coronavirus is silent on the question of tests and temperature checks. Employers should therefore stay on top of general and sector specific guidance applicable to them, which is likely to be updated as the public health situation evolves.

Of course, employers have a legal obligation to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees and to provide a safe work environment. It is therefore the employer’s decision whether tests are needed to ensure the workplace is safe for staff.

What tests are available?

Temperature tests are in theory relatively straightforward and need not be intrusive. The official guidance is that anyone with a high temperature (or another symptom of the virus) should get an antigen test as soon as possible and stay at home until the result, so encouraging individuals to check their temperature on a regular basis (e.g. every morning) might seem sensible.  This will help employees spot symptoms early, allowing employers to take timely steps to mitigate the risk of spread. However, this relies on voluntary and accurate reporting by the individuals.  If the employer wants to back this up with mandatory tests under their control, they will have to think very carefully about why this is necessary and justified in their workplace.

The ‘antigen test’ is a swab test which confirms whether someone currently has coronavirus. This test is freely available from the NHS for anyone with symptoms, so it may be better for employers to support employees getting NHS tests rather than providing their own privately. The advantage of private testing is speed and the ability to test all employees, even those without symptoms.  However, no matter how the test is done, most employers will not automatically have a right to know the outcome of the antigen test as, again, this is in the employee’s control.  It may be possible to obtain the employees’ consent to share the outcome of the test if done privately, but this is not straightforward. 

The ‘antibody test’ is a blood test which tests whether someone has coronavirus antibodies. If they do, it is likely they have had coronavirus. It is not certain whether people who have had coronavirus are immune from re-infection. The value of this test is therefore questionable and could produce a false sense of security or complacency in those testing positive. Antibody tests are privately available but are not widely available from the NHS and the same issues about whether the employer can find out the results of the test apply.

Things to consider

Risk assessment and consultation

The Government requires employees to conduct an HSE compliant risk assessment as the first step in preparing for returning to work. As part of this, employers should consider whether offering or requiring tests or temperature checks will effectively mitigate risk. Consideration should be given to whether tests will be for everyone or just some people, and how often will they take place and how (who will provide them and carry them out). Employers should ensure there is a rational and non-discriminatory basis for selection of who is tested and the other features of the chosen regime.

The Government advises employers to consult with employees (either directly or through trade unions, where appropriate). If employees want tests, this could be a decisive consideration. Similarly, strong opposition will need to be addressed if the employer thinks tests/checks are needed.

Enforcement?

Voluntary testing is of course the ideal and employers should think carefully about whether they can really justify enforced testing and whether anything else, less intrusive would have the same result. If an employer does consider the test necessary, they could look to contractual provisions that point to agreement to be tested (e.g. drug testing provisions) or alternatively state that the requirement is a reasonable management instruction, necessary to ensure a safe workplace. Before considering disciplinary action, employers should explore an employee’s reasons for refusing, which could, for example, relate to a protected characteristic. 

Data Protection

The Information Commissioner’s Office (ICO) has issued helpful guidance to employers in this area – generally in its “Six Data Protection Steps for Organisations” and, specifically, on Testing. The ICO recognises that employers could have a legitimate interest in carrying out testing and additionally, because this will be health related information and therefore special category data, a basis to do so under employment law.

Therefore, the critical question is will the tests be effective in keeping staff safe (bearing in mind other measures being taken)? If the answer is yes, then this is not an end to the employer’s data protection obligations. As HR professionals will know, the data they then collect should be the minimum necessary to achieve the objective of keeping staff safe, it should be held only for as long as strictly necessary, accessible only to those who need access to it and must be held securely. 

In addition, the employer must clearly explain to employees why it is carrying out the tests, what the information will be used for and with whom it might be shared. If the employer is using a third party to carry out the tests and sharing the data with them, then they should put in place a contract which specifies that the third party will comply with Data Protection law and keep any data it holds secure. Finally, the employer should record the assessment it has made on all of these issues and the decisions it has reached in a Data Privacy Impact Assessment.    

Looking forward

If tests are offered or required, thought should be given now to how these measures will be withdrawn. If tests are seen as a benefit (e.g. like corporate offers of flu-jabs) then withdrawal should be straightforward. However, if tests are deemed necessary for work to be safe, by withdrawing tests employers could be seen as breaching a health and safety standard which they have newly set themselves. To mitigate this, employers should be clear about why they are doing the tests now, how they will work and on what basis they will stop (for example reduced government threat levels nationally (or locally)).

Like with so many issues in the workplace, good communication and genuine consultation with staff should increase the chances of a cooperative and reassured workforce and reduce the risk of future complaints.

Author: Editorial Team

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