Some employers consider providing testing for their employees, even where the employees are not displaying symptoms will help prevent transmission of COVID-19 in the workplace. But what if you feel constant testing is invasive or unnecessary, do you have to take a test?
The bottom line is, if you refuse to take a test, your employer cannot force you to do so. Many employees may be willing to take the test to limit the risk of outbreaks, but individual consent is required to conduct each test.
The Information Commissioner’s Office (ICO) has published guidance for employers around workplace testing, which states that they will be able to rely on their health and safety duties as a ground for processing special category data, but they should carry out a data protection impact assessment before beginning to carry out any testing regime. They must also ensure that any testing requirement is ‘necessary, reasonable, fair and proportionate’ to the employees’ role/working environment in question.
To see whether your employer’s approach to testing is ‘reasonable, fair and proportionate’, they should consider:
Despite your right to refuse, your employer may be able to take disciplinary action against you, although this depends on factors, such as the nature of your work, and evidence on the necessity of testing. For example, working in a care home with vulnerable elderly people as opposed to working on a production line. Broadly speaking, if your employer can give a good reason for the testing, any refusal is likely to be viewed as a disciplinary matter.
Before taking disciplinary action for refusal, an employer must consider individual circumstances, reasons for refusal and any other mitigating factors. The requirement to be tested may disproportionately affect some protected groups, such as those with certain disabilities all of which should be considered by your employer.
Employers considering implementing a blanket testing policy are only allowed to do so if they comply with their GDPR obligations (General Data Protection Regulation) for processing ‘special category’ data. This means that any information must be protected and retained in such a way as to maintain each employee’s confidentiality, any failure will result in a data breach and likely sanctions.
You are entitled to receive information including the health data to be collected, what it will be used for, who (if anyone) it will be shared with, and the length of time the data will be kept.
The key to handling effective testing is communication and you should be confident that your employer will handle your personal data sensitively and safely. Ideally, they should have a COVID-19 policy putting into place procedures to be followed for the duration of the pandemic.
If you have any queries arising from this article, please do not hesitate to get in touch.