The legal and practical issues relating to testing for Covid-19 and contact tracing are far from straightforward. Here we set out our initial thinking on the key points that employers should incorporate into their planning for the return to the office.
We shall return to this important topic in future articles as the government’s strategy for controlling the spread of the virus through testing and contact tracing becomes known.
Testing for Covid-19 is now available for ‘essential workers’ and anyone with symptoms whose work cannot be done from home. It will, hopefully, soon become available for a wider group of employees, and employers must consider what part testing will play in managing the return to the workplace of their employees as and when lockdown restrictions are eased.
We start with an update on the current availability of tests.
This article covers:
- Essential workers and others now eligible for tests
- Who is included in the list of ‘essential workers’?
- How can essential workers and their families access the testing?
- What should employers do about the test results?
- What about the rest of the workforce? New legal territory
- Planning for effective contact tracing
- Reluctant employees
- Privacy and data protection issues for employers and employees
1. Essential workers and others now eligible for tests
Over the last two weeks the government has rolled out Covid-19 testing to ‘essential workers’, anyone with symptoms whose work cannot be done from home, care home residents and the over-65s. Individuals within these categories can now make use of testing, as can members of their respective households who are showing symptoms. By making tests available to this group the government is hoping to control regional outbreaks by ensuring those with the virus can be identified and isolated.
The expansion in testing eligibility means an estimate 25 million people can now book tests through the government’s website.
Our understanding is that this test determines whether the employee currently has Covid-19 and is not a test for antibodies to determine whether someone had Covid-19 in the past. This article is written on that premise.
2. Who is included in the list of ‘essential workers’?
The list covers the following groups of workers who are experiencing symptoms (and those living in the same household):
- all NHS and social staff
- essential public services staff (including those working in prisons, courts and tribunals and the judiciary)
- public safety and national security staff
- transport workers
- education and childcare workers
- critical personnel in the production and distribution of food, drink and essential goods;
- local and national government staff critical to the coronavirus response
- public and environment health staff
- funeral industry workers, and
- utilities, communication and financial services staff including staff need to for essential financial services (e.g. those working in banks, building societies and financial market infrastructure).
The full list of essential workers who are eligible for access to testing is available here.
3. How can essential workers and their families access the testing?
Employers of essential workers are able to register and refer their staff for tests. Employers who have queries around booking tests for employees are encouraged to contact the Department of Health and Social Care at email@example.com. Some employers have issued letters to those amongst their staff who are essential workers in order to assist their access to testing.
Testing appointments can be booked directly on the government website accessible here. Immediately following its launch last week, there were numerous reports of the website crashing due to the volume of applications. We understand that the website is now back up and running but may be prone to further crashes.
Once through to the website, users will be asked to confirm that they are on the list of essential workers and will be asked to select either a drive-through testing appointment in their region or a home test kit. As home tests are limited, the drive-through option (which the government is encouraging as a first choice) is likely to be the more popular.
4. What should employers do about the test results?
This is an immediate issue for the employers of essential workers, and is an issue that other employers will need to address when testing becomes more widely available.
If an employee is tested and the result is negative, he or she will be allowed to return to work if well enough, provided he or she confirms they have been without a high temperature for 48 hours and those living with the employee also tested negative and have not experienced any symptoms.
If an employee is tested and the result is positive, the employer, once informed. should then treat the employee as on sick leave and should pay statutory sick pay and contractual sick pay (if applicable) during the isolation period. Even if the employee wants to work, he or she should be encouraged by the employer to self-isolate and should not be required to work from home even if this is even feasible.
5. What about the rest of the workforce? New legal territory
How should businesses notify and protect the rest of their workforce once a positive result is obtained by a member of staff?
This is new legal territory. But we think it likely that employers will need to carry out a reasonable ‘contact tracing’ exercise in order to identify the members of staff who had direct contact with the member(s) of staff who have tested positive in order to discharge their health and safety obligations, which include providing a reasonably safe place of work.
There is so far minimal practical guidance on how such a contact tracing exercise should be conducted in a workplace context and how this would fit with the government’s own approach to contact tracing. We recommend that employers follow government guidance as and when this appears. However, in the meantime, we recommend that employers start to consider how testing would fit into their plans for a safe return to the office.
One possible approach is to develop a testing policy (as part of a wider return to work health and safety policy) which might include:
- requiring any employee who displays symptoms to immediately leave the office and undergo a test
- planning in advance where tests will be conducted and whether this will be through a government scheme or arranged privately and paid for by the employer
- considering what steps will need to be undertaken to ensure the accuracy of the test and to properly understand its implications
- ensuring that a member of the management team is charged with staying on top of the detail of any government/official guidance and that the policy is adapted quickly in response to changes in this
- informing relevant members of staff that an employee has tested positive
- arranging for anyone who has been working with them or with whom they had contact (and anyone else who is experiencing symptoms) to have a test as soon as possible (but note the data protection issues discussed below). Consider asking this group to go home immediately and to work from there until the test results come through.
- asking the employee to inform the employer whom they’ve had contact with; and as a back-up check their calendar provided that employees are made aware that this may be the case
- notify any third party with whom the employee had contact of the positive test result so they can take appropriate action (subject to the data protection issues discussed below)
- considering how the possible NHS contact tracing app might fit with this when more details become available
- ensure that the workplace/office occupied by the employee who tests positive is thoroughly cleaned and disinfected
- training line managers and HR to spot Covid-19 symptoms
- making a report under The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013 (if necessary).
We are putting forward these ideas now for discussion and in the spirit of enabling employers to develop their plans for returning to the office. As each workplace is set up differently, it is important for each employer to consider carefully the appropriate plans that need to be put in place to protect their workforce – a one size fits all approach is unlikely to be appropriate in these circumstances. Employers should ensure that they take reasonable efforts to keep up to date with the public health advice, government advice and health and safety advice which is available at any given time.
6. Planning for effective contact tracing
Testing and contact tracing would be one aspect of an overall plan designed to minimise the spread of the virus in the workplace involving distancing, cleanliness, face masks, rotating shifts and other measures. A discussion about these measures can be found in our article here.
We believe there are preparatory steps which can be taken by employers to prepare for effective contact tracing if this is required once they learn of a positive test result from one or more staff members.
Our initial thoughts as to what should be considered are:
- ensuring staff contact details and emergency contact numbers are up to date.
- strongly encouraging staff to use the NHS contact tracing app, once available (it is anticipated to be available for use by the public in two to three weeks, subject to regional trials which are ongoing). Some employers may want to require staff to use the NHS app. This may be possible so long as the legal basis for the data processing as applied by the app is not based on use consent, as consent compelled by an employer would not be valid.
- requiring, as far as possible, that all interactions between staff members are diarised so that the business has a record of which staff members have come into contact with each other
- ensuring that no meetings or face-to-face discussions are held which are not strictly necessary
- assigning shared facilities and hardware (such as kitchens, toilets, printers etc.) to particular teams or departments so that not all staff can use the same ones
- dividing up floor space with partitions so that specific groups are confined to certain areas only with their own facilities and banning access to other areas/facilities
- segregating workers by separate offices or temporary physical partitions
- keeping a log of all visitors to the office
- restricting or preventing access to common areas such as meeting rooms.
These measures may make it easier to carry out a contact tracing exercise if or when an employee has tested positive and limit the number of employees who may have to be sent home.
7. Reluctant employees
What can a business do if its employees are reluctant to participate in testing or contact tracing?
It is an implied term of every employment contract that an employee is under a duty to obey lawful and reasonable instructions given by his employer. It is arguable that a requirement to have a test in the circumstances described above falls within this. The employee is also under a duty to safeguard the health and safety of co-workers. The employee would have to give actual consent to the test as a medical procedure but an unreasonable refusal to do so may amount to a breach of their employment contract giving rise to the possibility of disciplinary action. We would however advise caution in view of the highly charged work environment in which people may be working.
8. Privacy and data protection issues for employers and employees
Testing and contact tracing will involve an employer collecting personal medical data relating to employees and others. It will be important that employers do not collect more information than they need and that they ensure that any information that is collected is treated with appropriate safeguards to ensure its confidentiality and security.
The test results or record of any temperature checks for any employee will constitute ‘special category’ (sensitive) personal data. An employer is entitled to process / disclose special category data where necessary to comply with their obligations under employment law, which includes ensuring the health, safety and welfare of their employees. Employers have an obligation to ensure the health and safety of their employees, as well as a duty of care. Data protection does not prevent employers doing this. However, this only extends to what is necessary and proportionate for this purpose.
While employers do not need consent to collect and process this data, employees must be clearly informed that the data will be used to take decisions about their employment, with whom it may be shared and that it will be retained in the employers’ records. It will be necessary to update employee privacy notices or to provide a Covid-19 supplemental privacy notice to ensure any new types of processing are covered.
Employers should not always name individuals who have tested positive and should not provide more information than is necessary. Where it is necessary to reveal the name of the employee(s) who have tested positive or contracted the virus, the affected employee(s) should be informed in advance to ensure that their dignity is protected.
If an employer is obliged to share information with authorities about specific employees such as the government, the local authority or the Health and Safety Executive, for example, in accordance with statutory health and safety duties then, so long as it is necessary, they can do so. They will not need employee consent and can generally rely on the legitimate interest basis when processing the health data of employees for health and safety purposes. So far as the legal basis for processing special category data is concerned, if an employer is required to share employee health data with the authorities, then they should be able to rely on the basis that disclosure is “necessary for reasons of public interest in the area of public health”.
In respect of the contact tracing app being developed by the NHS, it is yet to be seen how the government intends to roll this out and whether this will be on a voluntary or mandatory basis. However, it is highly likely that this will be voluntary and, therefore, there may be risks for employers who require employees to download the app. This will particularly be the case if processing of personal data carried out through the app is based on the user’s ‘explicit consent’ – if employees are forced by their employer to use the app, any consent given would unlikely be considered ‘freely given’ and would therefore most likely be invalid.
Finally, a test for Covid-19 will most likely be outside of the scope of the Access to Medical Records Act 1988, which only applies to medical reports “prepared by a medical practitioner who is or has been responsible for the clinical care of the individual”.
We hope that this initial set of thoughts is helpful for employers engaged in advance planning for the return of staff to the office and we will revisit this topic as and when more information becomes available from government.
If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak with your usual Fox Williams contact.
Articles and commentary by our legal experts on the impact of Covid-19 are all available here.