Can employers insist that workers are tested before starting an assignment or returning to work?

//Can employers insist that workers are tested before starting an assignment or returning to work?

Can employers insist that workers are tested before starting an assignment or returning to work?

2021-12-23T13:51:04+00:00 December 23rd, 2021|All|

Testing for Covid-19 at work is playing an essential role as employees return to the office. These FAQs look at the legal issues you need to consider when implementing a workplace testing programme. We will update this section to include new FAQs as and when developments occur.

1. Can employers insist that workers are tested before starting an assignment or returning to work?

There is no requirement for individuals to do a covid test if they are not showing symptoms and you should carefully consider the reasons an individual may have for refusing. Forcing an individual to get tested could contravene Article 8 of the Human Rights Act 1998 which protects an individuals right to private and family life.

Government guidance requires anyone with covid symptoms to be tested and to self-isolate, to comply with this requirement it would not be unreasonable for employers to require those workers to be tested. Employers are more likely to enforce testing where the role involves working with clinically vulnerable individuals and this is something that should be agreed with workers before they begin an assignment.

The Management of Health & Safety at Work Regulations 1999 (MHSWR 1999) set out in detail the obligations on employers to manage the health and safety of their workforce. The client and the employment business have joint responsibility when it comes to coordinating a temporary worker’s health and safety. Employers have a legal responsibility to protect the health and safety of their employees as well as other people, such as work-seekers and clients, who may be affected by their work. Employers have a duty of care towards their workers and depending on the circumstances, they may include as a criteria that workers are tested to protect the wider workforce.

Clients may have company policies in place where workers are required to have a negative covid test before they begin an assignment. In such circumstances employment businesses can ask their workers to be tested before they are supplied. This is something you should check with the client before supplying workers. If the worker refuses, then you should discuss the reasons with them. So long as the reason does not contravene the Equality Act 2010, you do not have to place them in the assignment. 

2. Can I pass the results of a covid test to the client?

 The client should be informed of the results of a covid test, particularly if it is a positive test result as other workers on the assignment may also need to be tested. If you intend to pass on a covid result notification you should avoid naming individuals if possible and you should not provide more information than is necessary. You should treat health data with more precaution as it is classified as special category data. The ICO have stated when disclosing this type of information, you should only collect the minimum amount of data and ensure that it is adequate, relevant and necessary to fulfil the purpose. You should only extract information about the test and result itself and you should not retain information relating to other underlying conditions.

You must ensure that any data you hold is accurate in line with data protection laws. If a worker is required to do more than one covid test, then these results should be updated on your systems each time to ensure you are holding valid information. You need to base any decisions you take on factually accurate information.

3. What are an agencies obligations under the Conduct of Employment Agencies and Employment Businesses Regulations 2003?

Under the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (the Conduct Regulations), regulation 20 states that an employment agency or business shall not supply or introduce a worker until they have taken all such steps, as are reasonably practicable, to ensure that the work-seeker and the hirer are each aware of any requirements imposed by law, or by any professional body. Employment agencies and businesses must also make all such enquiries, as are reasonably practicable, to ensure that it would not be detrimental to the interests of the work-seeker or the client in the position which the client seeks to fill.

If the nature of the role involves working with vulnerable individuals, then the client can insist that a covid test is done before a work-seeker starts an assignment. Providing a covid test result to the client could be considered necessary for role, especially where the candidate will be working with clinically vulnerable individuals. In these circumstances you could rely on the public health condition under the Data Protection Act to process this information. if you intend to rely on the public health condition, you must ensure that a health professional carries out the processing, or that you tell your workforce that you are treating their covid test result as confidential and would only disclose it in defined circumstances.

4. How should data in NHS notifications be processed?

In order to process special category data, you must be able to rely on one of the lawful basis set out in Article 6 of the UK GDPR. They are the following:

(a) Consent: the individual has given clear consent for you to process their personal data for a specific purpose.

(b) Contract: the processing is necessary for a contract you have with the individual, or because they have asked you to take specific steps before entering into a contract.

(c) Legal obligation: the processing is necessary for you to comply with the law (not including contractual obligations).

(d) Vital interests: the processing is necessary to protect someone’s life.

(e) Public task: the processing is necessary for you to perform a task in the public interest or for your official functions, and the task or function has a clear basis in law.

(f) Legitimate interests: the processing is necessary for your legitimate interests or the legitimate interests of a third party, unless there is a good reason to protect the individual’s personal data which overrides those legitimate interests.

It is likely that legal obligation and legitimate interest are the basis which most businesses will rely on when processing covid results. You would need to disclose a positive test result as this would protect the client and the workers on that site. Likewise, it should be disclosed to the relevant individuals within the workplace as well. Again, you should avoid naming individuals if possible and you should not provide more information than is necessary. Similarly, you have a legal obligation under the Conduct Regulations and The Management of Health & Safety at Work Regulations to disclose this information to the client. You also may be able to rely on the other lawful basis to process this data.

Health data is also considered as ‘special category data’, so in addition to relying on a lawful basis under Article 6 you must also be able to identify a reason for processing under Article 9 of the UK GDPR. The most applicable conditions are:

  1. The employment condition which applies to organisations who are testing for health and safety reasons and
  2. The public health condition which includes employers who are stopping the spread of the virus by running their own testing programs and reporting it to NHS test and trace.

The ICO warns that ‘if you intend to rely on the public health condition, you must ensure that a health professional carries out the processing, or that you tell people you are treating their vaccination status as confidential and would only disclose it in defined circumstances. Relying on consent as a condition is rarely appropriate in an employment setting given the imbalance of power between the employer and employee.’

Under both the employment condition and the public health condition the processing of data must be ‘necessary’. The ICO state that this does not mean that it must be absolutely essential to process the data, but it must be more than just useful or habitual.

When processing this information for either of the purposes set out above it is important that organisations are handling data lawfully by having the correct security measures in place. Only data that is relevant and necessary should be collected and shared.

5. What systems should I have in place to handle covid testing data?

With your internal employees, you should make sure that they are not disclosing information relating to temporary workers to any colleagues, clients or other parties without following the correct processes. The ICO emphasises the importance of providing training to staff so they understand what they should and should not do with sensitive personal data. Staff should also be aware of the policies and procedures in place in relation to data protection and they should also be reminded that it is an offence under the DPA 2018 to obtain or disclose customer information without the organisation’s knowledge or consent.

The ICO recommends that organisations have internal audit programmes which will help them to monitor data protection compliance to ensure the correct systems are in place. This is particularly important where special category data such as health data is being handled.

Where special category data is handled organisations should conduct a data protection impact assessment (DPIA) to show they are compliant with data protection laws. Conducting this assessment will help you to access and minimise your risks as a business when it comes to processing special category data.

The ICO have a DPIA template which members can use.

6. How can employers enforce covid testing for employees in the workplace?

Certain roles will require workers to have a negative covid test result before beginning an assignment or starting work, and the best way to enforce this would be through a contractual agreement. However, not all roles may require a COVID test and where this is the case employers can only enforce a contractual provision to allow for testing where they have the workers agreement or a workplace trade union or employee representative’s agreement.

Employees generally have an obligation to follow lawful and reasonable instructions given by employers, and this would include any instruction stipulated in the contract. If an employee fails to comply with this instruction, it could be considered a misconduct. This can only be the case where the employee has agreed in writing to follow this instruction. If an employer tries to enforce an instruction on an employee without any agreement in place this could be considered a breach on their part.

ACAS has updated their covid testing guidance to reflect that any contractual agreement should be in writing and in line with any existing disciplinary or grievance policy.

Organisations should ensure that the appropriate internal data protection policies are in place which clarify how data is being processed and stored both for their internal employees and for any workers who are being supplied. All workers should have access to these policies, so they know how their data is being used.

Read more in this series of blogs “Back to work”

About Aspire Cambridge

Headquartered in Cambridge Aspire Cambridge have been providing cost effective Recruitment and HR solutions to an impressive portfolio of customers spanning the UK and Europe and in 2019, 2020 and again in 2021 awarded “The Best Recruitment and HR Solutions Provider” in England.

From taking on your first employee to managing your greatest resource – people, we’ve got it covered; from Recruitment to Human Resources, we pride ourselves on “Placing People First”. We believe in changing people’s lives for the better. We believe in consistently #placingpeoplefirst and genuinely care. Whether that’s for our employees, candidates or clients – people matter.

For further support, guidance or implementation on any area of this series of articles please contact our HR Consultant today on 01223 855441.

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