Lateral flow testing in the workplace: legal considerations for employers

Many employers have introduced lateral flow testing in the workplace. Philip Sayers, solicitor in Coodes’ Employment team, discusses the legal considerations for employers.

Blog updated 26 January 2022.

Over the last few months, many businesses and public sector organisations have implemented Covid-19 testing procedures for their employees.

Because it provides such quick results, lateral flow testing was quickly adopted by a growing number of healthcare and education providers.

Lateral flow testing in the workplace may play an important role in keeping the Covid-19 virus under control in the coming months. It provides rapid results for anyone, including – crucially – those who are asymptomatic. However, it raises a number of legal considerations for employers.

Before introducing a policy, it is important to ensure you are complying with employment law, seeking professional advice if necessary.

Will the test be voluntary or mandatory?

A fundamental question for any employer considering lateral flow testing is whether the test will be voluntary or mandatory. There are pros and cons to each. The Government has not stated which approach workplaces should take and it has been left to the employer’s discretion.

A voluntary test may be welcomed more readily by employees. By making the test voluntary, the employer will not have as many legal considerations to address as they would with a mandatory test. However, there is a risk of a low take-up of optional tests, which may result in employees losing confidence in the whole process.

Introducing compulsory testing, on the other hand, creates more potential legal issues and could make an employer vulnerable to GDPR breaches and employment disputes.

The importance of good communication

Whether you decide on voluntary or compulsory testing, clear communication with staff will be vital. It is essential that employees understand exactly what the testing will involve and whether or not it is mandatory.

The employer should discuss their proposed testing process with employees and any representative bodies, including trade unions. Acas has some helpful advice on this. The agreed procedures should then be put in writing and reflected in any policy documents.

It is also important that employees and anyone visiting the workplace understand that the test is not a replacement for social distancing and other Covid safety measures.

Reviewing employment contracts

It is important to note that it would not be legal for an employer to force a staff member to undergo any kind of medical test. However, in November 2021, the Government made it a legal requirement for frontline care home staff to be fully vaccinated. In April 2022, the same rule will apply to patient-facing NHS staff.

It may be possible to make lateral flow testing a requirement for their continued employment, in which case this would need to be set out in the employment contract.

If you are introducing compulsory lateral flow tests, you will need to review your employment contracts. They may then need to be redrafted to cover the new requirement on employees to undergo Covid tests.

Procedures following a positive test

Before introducing lateral flow testing in the workplace, an employer will need to establish procedures for any employees who test positive. Anyone who has a positive result from a Covid test should follow the current Government guidance.

Employers will need to ensure their procedures following a positive test, including pay arrangements, are clearly communicated to staff.

Confidentiality and data handling

Holding employees’ results from lateral flow testing raises questions about confidentiality and data protection. You should review your current processes and carry out a data protection impact assessment ahead of introducing testing.

My colleague Kirsty Davey, Partner and Head of Corporate and Commercial at Coodes Solicitors, has this advice: “Data protection law is particularly stringent when it comes to medical information, which would include employees’ lateral flow test results. That should not a barrier to introducing testing in your workplace but you will need to ensure you comply with the GDPR and Data Protection Act 2018.

“Because medical test results are classed as ‘special category data’ you will need to put safeguards in place to ensure they are held in the right way, should you decide to proceed with testing. It is important that you understand the legal requirements of collecting and managing this sensitive data.”

For more information or advice, please contact the Employment team at Coodes Solicitors: 0800 328 3282 or cde@coodes.co.uk