What is the best practice regarding employees and COVID-19 testing?

In February 2021, the UK Government announced support to provide targeted, rapid testing in all key workplaces to ensure vital public and economic services can continue. At the time of writing, criteria for joining the workplace-testing programme include businesses with more than 50 employees, with particular focus on vital public services and industries linked to the food supply chain.

Participation remains a voluntary decision for employers, but if done correctly, the testing can provide confidence to workers and customers.

Before deciding to test — either via the government supported programme or one arranged with a private provider — it is recommended that employers are clear on the following:

• Who the testing will cover — for example, whether this is only directly employed staff, or also individuals working onsite, like contractors.
• What the focus of the programme is: such as staff with symptoms only or also those without symptoms.
• How often staff will be tested.
• The appropriate facilities for carrying out the tests.
• Which test should be used (to be clear, virus tests are designed to detect active infection whereas antibody tests only reveal evidence of previous infection).
• What the arrangements will be for any individual who does not wish to be tested.
• How the employer will use test results, including its policies on matters like handling health information, absence from work, self-isolation, diversity, non-discrimination, and so on.
• The compatibility of the programme with its legal responsibilities to staff including under health and safety, equalities, data protection, and employment law.
• How the legal duty to report test results to Public Health England (PHE) will be carried out, and by whom.
• The affordability of implementing a testing programme (should public funding cease or not be available).

It is also recommended that employers actively engage with staff associations or unions ahead of any developments, and ensure GDPR is complied with. They must provide employees with information, including on what health data will be collected, what it will be used for, who (if anyone) it will be shared with, and for how long it will be kept.

If an employee does not agree to take a test, they cannot be forced to do so. In certain circumstances, it may be open to employers to take disciplinary action against an employee who refuses a test, but this would depend on factors such as the nature of the employee's work and any evidence on the necessity of testing in the particular environment.