Testing, testing… what role for lateral flow tests in your return to the office?

After so long being out of the office, implementing a return to work plan is a novel area for office-based employers, which gives rise to uncertainty and risks to both health and employee relations.

Employers will be mindful of the need to ensure the health and safety of their employees and the importance of carrying out risk assessments before reintroducing employees into the workplace. These measures are discussed here in more detail. How does employee testing for Covid-19 fit into these plans?

In this article we cover:

1. What tests are available?
2. How might tests feature in our workplace?
3. What are the legal issues?
4. What happens if an employee tests positive?
5. Conclusion

1. What tests are available?

The Government sees lateral flow testing as an essential part of reducing the spread of Covid-19 and facilitating employees’ return to work without inducing a significant rise in transmission.  Lateral flow tests are now free and available for all households.  Whilst they are seen to be less accurate than the lab-based PCR test, their availability at zero cost means employees will be able to get an indication within a matter of around 30 minutes as to whether they have Covid-19. It is therefore an efficient means of potentially reducing the spread of the virus.

The Government had previously made it possible for employers to apply for free lateral flow test kits for employees who applied prior to 12 April. This deadline has now passed and employers can no longer obtain free test kits.  However, any individual can now directly receive lateral flow test kits quite simply by going to their local pharmacy, so these test kits are widely available to individuals.

Testing employees on a regular basis could help build confidence that the office is a safe environment and that attending the office does not risk their health or the health of family members they live with.

2. How might tests feature in our workplace?

There are different ways in which employers may choose to introduce testing.  Employers could choose, for example, to buy their own tests and set up their own workplace testing, or hire a third party provider to do the test. A less costly option would be to ask employees to obtain free testing themselves and to carry out tests in the home before attending the office.  However, this would naturally give an employer less oversight of the process: it would essentially rely upon an employee’s assurances that they are appropriately testing themselves at regular intervals.

Before we consider the legal issues, there are more immediate practicalities to think about. Employers should consider who the tests will be carried out by, and who will be subjected to testing: just those who cannot socially distance due to the nature of their role, or all staff? Where will testing be carried out, and how frequently?  The answers to these issues should be reflected in any policy documentation.

More importantly, it must be remembered that – even if you have employees being frequently tested – this does not remove the need for other measures to remain in place: it is estimated that lateral flow tests will only detect around three in every four asymptomatic cases.  Whilst detecting three quarters of asymptomatic cases is better than none, meaning the tests are useful in minimising the level of transmission within the workplace, they cannot be relied on as a means of completely eradicating Covid-19 within the office, even if employees are entirely compliant.   

3. What are the legal issues?  

Whilst an internal testing regime may be helpful in promoting health and safety, it undoubtedly gives rise to significant legal questions.  Whilst the motive is thoroughly understandable and well-intended, an employer could inadvertently encounter potential legal headaches if it has not thoroughly thought about its approach carefully, prior to implementing any requirements for testing. It is important to conduct a comprehensive assessment of any issues, based on the latest understanding of the science around transmission, before introducing any such policy.

A. Should the testing regime be mandatory?

It is questionable to what extent an employer can legally require an employee to undergo a test as a condition of entry to the office. Whilst the employer clearly has a reasonable aim and asking for a test can be seen as a reasonable instruction, this could be debated given that there are arguably more proportionate and less invasive ways of ensuring health and safety in the workplace, for example ensuring the workplace layout facilitates social distancing, making hand sanitizer widely available and maximising ventilation. Requiring employees to undergo what is an invasive and uncomfortable test in circumstances where they are not displaying symptoms may therefore be seen as an unreasonable action by an employer.

Employers could be at risk of exposing themselves to constructive unfair dismissal claims in respect of those employees who have two years employment, as an individual could claim that the requirement to take a test was a fundamental breach of contract which entitled them to resign and treat themselves as constructively and unfairly dismissed by the employer.

B. Data protection issues

There are also significant issues raised from a data protection perspective, especially when the employer implements its own testing regime, since the employer will be storing and processing sensitive personal data relating to the health of the employee. There will also be similar questions asked about the extent to which there is a legitimate purpose for the testing and whether it is proportionate to require testing. Employees could make complaints to the Information Commissioner in respect of compulsory workplace testing or requirements to provide evidence of a negative test.

There will also be knock-on legal issues that may not spring to mind immediately. For example, if employees are required to spend extra time to carry out tests, this would be classified as working time and therefore the employer should ensure the employee is paid for that time, particularly to avoid any risks of national minimum wage claims.

C. Should we take a voluntary approach?

In light of these risks and the administrative burden of a mandatory testing regime, many employers may choose to implement workplace testing as a voluntary regime to which the employee is invited to participate to encourage the health and safety of the entire workplace. Whilst some employers may wish to make testing mandatory, they should consider carefully the justifications for this approach before implementation.

Where the employer sets up workplace testing as a voluntary process, it should consider offering employees suitable assurances about how the policy will be implemented which might help employees participating in such a programme. Employees might be hesitant of participating if they feel that it may result in them being required to isolate if they do test positive and receive statutory sick pay only, for example.

D. Should we have a policy?

To help provide some protection against claims, an employer should consider whether it might be appropriate to set out any plans in respect of workplace testing in a formal workplace testing policy document. This should help provide employees with sufficient information and to assist in enabling testing to be carried out appropriately, fairly and consistently. Employers should consult with employees before introducing employee testing.

4. What happens if an employee tests positive?

If an employee tests positive, he or she should be required not to attend the office. We recommend working from home for at least ten days (or sickness absence on full pay if that is not possible), or for longer if symptoms subsequently appear. The result should be reported to the NHS in accordance with the usual procedures for lateral flow tests. Employers should consider requiring (and covering the cost of) a PCR test to confirm that the employee is no longer infectious prior to returning to the office. 

It should be noted that, if an employee is contacted by Test & Trace and instructed to self-isolate, a negative lateral flow test cannot be used to override the instruction. 

5. Conclusion

We consider that implementing some form of testing regime or requirement is a prudent step for employers to take in 2021 to ensure that workplaces are operated as safely as possible. Once the pandemic has been brought under control in the wider population, the policy should be reviewed to assess whether it remains an appropriate and proportionate health and safety measure.