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Global HR Lawyers

Workforce testing – FAQs for employers

26 July 2021

Testing for Covid-19 is an option for employers hoping to encourage employees to return to the workplace, control the spread of the virus and increase customer and staff confidence. These FAQs cover the legal issues and considerations that employers should take on board when considering or using a testing programme.

Key latest developments

  • The government no longer provides free workplace lateral flow tests for employers as of 19 July. Employers with existing testing programmes will therefore need to choose whether to fund the cost of test kits privately, discontinue altogether or encourage staff to order their own free lateral flow test kits from the government website
  • The government have confirmed that free lateral flow tests will continue to be provided to the general public until at least the end of August. The government has denied that it has plans to start charging for lateral flow tests, as had been reported in the media.
  • The government has published workplace testing guidance for employers setting out the options for workforce testing, alongside more practical setting-up advice. Acas has also provided advice on testing staff for coronavirus. The government also launched an endorsement scheme called ‘We Offer Testing to our Staff’ allowing businesses offering workplace testing to display physical and virtual stickers alerting consumers of their stance.
  • The NHS Covid pass is now available to allow individuals to evidence their Covid status by demonstrating that they are fully vaccinated, have natural immunity from an infection or a negative lateral flow test. The government has said that “essential settings” should not be requiring employees to prove their status, but that currently other businesses can use the NHS Covid pass at their own discretion subject to complying with their legal obligations. See ‘Using the NHS Covid pass for staff’ for more information.

The new issues for workplace testing

What does 19 July mean for existing workplace testing schemes?

Prior to 19 July, the government provided free lateral flow tests to registered businesses. Now that restrictions have been lifted, the provision of lateral flow tests to businesses will no longer continue, but individuals will still be able to obtain free tests from the government website until at least the end of August. This allows individuals to test themselves at home twice a week. Employers will therefore need to decide to finish their workplace testing scheme, pay for the test kits privately or encourage employees to order test kits directly themselves (whilst available).

Should we continue providing a workplace testing scheme given employees can access the test kits for free themselves?

This depends on whether the employer wants to retain control and oversight of the process.

Without running workplace testing onsite, an employer has no way of knowing whether any employees are testing themselves regularly at home. The accuracy of the tests is also improved if they are carried out by a trained medical professional.

In addition, the logistics of entering details online to order kits routinely or attending a testing site twice a week may put some people off from self-testing at home.

Can we make asymptomatic lateral flow testing mandatory?

The lifting of the legal requirement to wear masks in shops, on public transport and enclosed public spaces from 19 July may strengthen an employer’s argument that mandatory testing is needed, especially when combined with the lifting of social distancing restrictions and particularly in settings where staff have to spend prolonged periods in close proximity to others.

The latest government guidance on working safely during coronavirus does not give any advice on whether employers ought to test their staff in most workplaces.  However, the guidance for events and attractions and for hotels and guest accommodation says that employers should “consider asking your employees to get tested regularly”.

Mandating testing is possible, but not without risk. While mandatory testing is not as contentious as mandatory vaccination (see our Vaccination FAQs for details), it still requires individuals to undergo an invasive and unpleasant test based on the chance of identifying positive cases.

The main legal risks arise in relation to:

  • data privacy (see below) and
  • employees with more than two years’ continuous employment, who could claim unfair dismissal if they were to be dismissed for refusing to comply with an employer’s order to submit to testing. It would then be for an Employment Tribunal to assess the reasonableness of the employer’s decision to dismiss. Given that the tests are not infallible in terms of identifying positive cases, employers would need to show why it was reasonable to dismiss an employee for failing to submit to testing. There have been few reported Employment Tribunal (ET) decisions on workplace Covid-secure issues, but so far we have seen that ETs have been willing to support disciplinary action in cases where employees refuse to comply with an employer’s safety measures even if those measures go beyond strict legal obligations, provided the employer can demonstrate a clear rationale and show it has communicated that clearly.

In contrast to the position with a mandatory vaccination policy, it is unlikely that an employee would be able to claim that blanket mandatory testing would be discriminatory. There are few, if any, valid religious objections or medical conditions preventing testing that are capable of amounting to a disability.

It is less risky to take an “information and encouragement” route of strongly urging employees to embrace testing, rather than making it mandatory. Offering incentives is also less of a risk than for vaccination, given the risk of a genuine discrimination claim is extremely low in relation to testing.

As offices reopen, it may be possible for employers to insist on an employee’s participation in workplace testing as a condition of returning the office, with those who do not wish to participate being asked to continue working from home.

Employers may also follow the approach of the NHS Covid pass (see below), and require only employees who are not double-vaccinated to take mandatory tests.  This may be more justifiable than mandating tests for everyone.

What are the logistical issues of mandating lateral flow testing?

Mandating lateral flow testing may not be straightforward from a logistical perspective. Employers will need to consider:

  • Funding: If the employer is not funding the test kits itself, there may be reluctance amongst employees to order or collect test kits themselves or practical issues such as a delay in the postal system which could cause staffing issues. The government may also discontinue the provision of lateral flow test kits to the public after 31 August 2021 meaning an employer would need to fund the tests themselves.
  • National Minimum Wage: If mandating testing, employers would need to pay any workers earning the national minimum wage for their time spent taking the test. (See ‘Are there any minimum wage risks around testing?’ below)
  • Evidence: Employers need to decide if they will ask for evidence of compliance or simply ask employees to confirm that they are complying with testing twice a week. If employers wish to collect test results, they will need to carefully consider the data protection risks (see below) It may also be possible for employees to use the NHS Covid Pass (see below).
  • Exemption of double-vaccinated employees: Whilst this would disadvantage younger employees who have not yet had the chance to be fully vaccinated and those who are unable to receive vaccination (be it for medical or, in a very small number of cases, belief), it may be justifiable on workforce health grounds.

There are also data privacy risks as employers would be processing employees’ vaccination data to evidence that they do not need to undertake testing. Employers would need to ensure they had conducted a DPIA before processing any information and were satisfied that they were processing the data as a result of a legal obligation (e.g. complying with their health and safety obligations) or in the public interest of minimising the spread of Covid infections.

Can we ask employees to demonstrate their Covid status using the NHS Covid pass?

The NHS Covid pass is available to individuals aged over 18 who are fully vaccinated, have tested negative in the previous 48 hours (using either a PCR test or a lateral flow test) or can be taken to have natural immunity because they had a positive PCR test in the previous 6 months. Individuals who are exempt from vaccination or testing may be asked to self-declare their condition.

There is limited guidance regarding the use of the NHS Covid pass although some employers could potentially use the NHS Covid pass as an alternative to mandatory testing or vaccination policies. It carries similar legal risks to exempting fully vaccinated employees from a mandatory testing policy (see above). Our article on ‘Using the NHS Covid pass for staff’ has more information.

Deciding if workplace testing is right for the business

What is a lateral flow test?

In summary, a lateral flow device (LFD) uses the same technology as a pregnancy test with a test paper that changes colour if a sample taken from the throat and nose indicates coronavirus is present. After the swab from the tester is put into a special solution, it is then transferred to the LFD with the result becoming visible after 30 minutes.

This is different from a polymerase chain reaction (PCR) test which is more accurate as it involves a laboratory analysing the sample and providing the result.

Why are the government no longer providing free test kits having encouraged it before and how effective is it?

The well-known message that one in three people can have coronavirus without displaying any symptoms is the main reason the government initially encouraged workplaces to roll out workplace lateral flow testing. The benefit of asymptomatic testing is that it identifies cases which would have been undetected otherwise and allows those individuals to isolate, in the hope of avoiding a full-blown workplace outbreak.

The government have not confirmed the rationale for the test kits no longer being available to employers after 19 July, although the cost is substantial.

What does lateral flow testing cost?

After the government stopped funding lateral flow tests for businesses on 19 July, businesses are now required to fund the cost of test kits themselves (unless relying on individuals obtaining them for free). The government has published a list of approved Covid-19 test providers if organisations wish to partner with a third party to organise their workplace testing.

What issues do we need to consider for onsite testing?

Here is a list of the important practical matters you should resolve:

  • Decide what is the right test for your workplace and staff.
  • Consider whether a trained professional is required or recommended to carry out or supervise self-testing.
  • If so, the required personal protective equipment (PPE) and safety measures for the trained professional.
  • Notify your insurer (if appropriate).
  • The scope of testing – employees, contractors and visitors?
  • Designate a workplace area suitable for testing and the correct storage and disposal of test kits.
  • The timing of tests – temperature tests would normally be carried out on arrival, whereas lateral flow tests would typically be organised with an appointment rota covering all staff working patterns.
  • The frequency of testing. (Government advice is that lateral flow tests should be carried out twice a week.)
  • Recording lateral flow test results and registering them with Public Health England.
  • Policy decisions such as whether to mandate testing, data privacy issues, impact on staffing levels and furlough, and sickness policies. (See the section on legal issues below.)

Logistical issues involved in testing

If we implement lateral flow or temperature testing, can we relax all of our other safety measures?

No. Testing should be used in combination and alongside other safety measures, . There is a danger that an ill-informed employee, on receiving a negative test result, may assume they do not have the virus and not properly comply with your other safety measures such as hand sanitisation. Employers can prevent this through appropriate messaging about the limitations of the tests themselves and reinforcing the importance of continued compliance with safety protocols.

Do we need employees to isolate pending results of lateral flow tests?

This depends on your risk assessment and what other safety measures you have in place. Updated government workplace guidance does state that “You should also ensure that an appropriate setting is available for individuals to wait in while their test is processed.”

However, our understanding is that the government’s clinical procedure classes a waiting area for test results as optional. Provided you have appropriate Covid-19 secure workplace measures in place, you could allow employees to return to their work while waiting for test results. In the absence of workplace testing, any staff without symptoms would continue to work and potentially infect others.

What happens if an employee receives a positive result?

They must immediately return home to self-isolate for the period notified to them by the NHS Test & Trace system. Employers commit an offence if they knowingly allow a person who has been officially notified that they must self-isolate to work anywhere other than where they are self-isolating.

Employees are legally required to inform their employers if they are officially told to self-isolate. The employer should take care to avoid disclosing an individual’s identity to their colleagues if they do test positive for coronavirus, although in some circumstances this will be unavoidable.

The current NHS guidance is that a positive result from a LFD test should be verified with a PCR test.

Where an individual is officially advised to take a further test to confirm their LFD test result, the requirement to self-isolate ends immediately if they are notified that the result of the second test is negative.

For the impact on pay, see below under “Do we need to amend any of our sickness policies?”

What happens if an employee receives a void or invalid result?

An invalid result occurs where the sample could not be read, perhaps because the result itself is not clear (indeterminate) or a test has malfunctioned. Employees should either be retested with a LFD test again or if not practical, advised to retest with a PCR test by requesting a home test via the government testing website. Two invalid results should always necessitate an NHS PCR test.  An invalid result does not, by itself, trigger any self-isolation requirements.

Do vaccinated employees need to continue using lateral flow tests and/or undergo temperature checks?

Current advice is that vaccinated employees should continue to be part of any workplace testing schemes or other safety measures, such as temperature checks. This is because no vaccine is 100% effective at preventing a Covid-19 infection and the effect of vaccination on transmission is currently unknown.

However, this does not stop employers informing employees that they do not need to participate in testing schemes if they have been double vaccinated. This may act as an incentive to accept vaccination for employees who do not wish to continue taking an invasive and uncomfortable test. It carries some legal risks (see “What are the logistical issues of mandating lateral flow testing?” above) but may nonetheless be justifiable.

Other legal issues raised by workplace testing

Do we need to amend any of our sickness policies?

Employers who want to encourage high levels of testing may need to consider if their sickness policies could discourage employees from coming forward for fear of a positive result.

Employees who test positive through asymptomatic testing may not fall within your company sick pay policy as they are not actually absent through illness. Some companies may have already amended their policies to cover coronavirus self-isolation (including situations for household members testing positive), but it is a necessary consideration for businesses who haven’t done so and want to introduce workplace testing.

An employee may be entitled to statutory sick pay (SSP) if they earn at least £120 a week. This is currently £96.35 per week, although some organisations may offer enhanced sick pay above SSP levels. SSP is paid from the first qualifying day (a day they are meant to be in work) for those who are off sick or self-isolating due to coronavirus, provided they are off for at least four days in a row.

For organisations offering SSP only, staff may be reluctant to attend for voluntary testing if a positive result means receiving only SSP whilst they are self-isolating. However, some employees may also be eligible for a one-off payment of £500 from the Test and Trace Support Payment Scheme.

As a means of encouraging uptake, some employers are implementing a workplace testing policy which provides full salaries for those who receive a positive test (as a result of the workplace screening) during their period of isolation if they cannot otherwise work from home.

Employers may also want to consider how someone’s absence would be treated for the purposes of any attendance management policy (for example, being used in a Bradford Factor calculation or triggering an employee into an attendance management review). 

What should we consider about staffing levels?

When drawing up a testing plan, businesses will need to consider how the desired testing frequency can be achieved for all staff, across all shifts and working patterns.

Any workplace testing comes with the possibility of staff needing to be sent home at short notice. This means you may need to call on employees at short notice to cover someone’s absence or redeploy them at short notice to different locations. You should consider building this level of flexibility into employees’ contracts if you do not already have it.

Can we place employees who test positive on furlough?

Furloughing employees who test positive for coronavirus is not endorsed by the current guidance on the Coronavirus Job Retention Scheme, which says that it “is not intended for short-term absences from work due to sickness” and that “short-term illness or self-isolation should not be a consideration in deciding whether to furlough an employee”.

In contradiction with the official advice, the Acas guidance suggests that employers may consider using the furlough scheme in such circumstances. In our view, employers who are using the furlough scheme flexibly to rotate staff on and off furlough could potentially make the case for “rescheduling” the self-isolating employee’s turn on furlough - particularly if this doesn’t result in the employee spending more time on furlough than they would otherwise have done. This is an untested and risky area, however, and employers would be well advised to seek advice on their particular circumstances given the increased scrutiny of the use of the furlough scheme.

For further information on furlough generally, see our FAQs on furloughing employees.

Do we need to pay employees for time spent taking lateral flow tests?

Where workplace testing is mandatory, employees will need to be paid for their time to participate in it. The position for voluntary testing is less clear cut, but in practice employers using testing programmes may need to pay employees for time spent taking the test to encourage high participation levels among their workforce.

Employees do not need to isolate for 30 minutes waiting for results, so only the time taking the test will be lost (estimate at around 5-10 minutes). The cost is therefore likely to be significant only for hourly-paid employees where they are asked to attend in advance of their shift or travel to a different location to take the test.

Are there any minimum wage risks around testing?

We recommend employers take advice if employees are receiving the national minimum wage (NMW) and are testing from home outside of working hours (e.g. on a Sunday evening before attending their shift on Monday morning). This practice primarily allows the employer to manage any staffing issues should a positive test be received, but it runs the risk that a failure to make payment for the time spent taking the test and recording the result could mean non-compliance with the NMW. Employers should carefully consider whether they should request staff to test at home or do so on attending their workplace (if offering workplace testing).

Do we need to consult with employees before we introduce a testing scheme?

Yes. Government guidance emphasises that employers have a duty to consult their people on health and safety. (For further discussion of this, see our FAQs on managing a safe return to the workplace.)

Acas’s guidance also recommends consulting with employees as a matter of best practice before introducing any testing regime to cover how it will work, the consequences of a positive test (including pay) and how employee data will be used and shared.

Should we have a testing policy?

Yes if you are going to be operating testing at the workplace. You will want to explain why you are asking employees to be tested along with the benefits in a detailed internal communications plan. This should cover why the business has decided testing is appropriate and what expectations it has of staff both in testing and compliance with other safety measures. Risk assessments should also be updated.

Employers may find it helpful to have a written policy as a method of communication with employees, and also to formally record any changes to any other policies as a result of the testing regime (for example, if sickness policies are being amended). Equally, a reminder of what other safety measures will be in place is advisable. 

How do we comply with data protection obligations?

Before conducting any testing programme, employers will need to conduct a data protection impact assessment (DPIA). This is because processing employee’s health data involves large-scale processing of special category data. The DPIA should consider why such processing is needed and what policies or information about the processing need to be shared with employees.

Employee health data can be processed if there is a lawful basis for doing so. Most employers will be able to rely on their health and safety obligations or “substantial public interest” as the legal basis for processing testing data. 

The Information Commissioner’s Office (ICO) has released guidance for employers on carrying out workplace testing, emphasising the need to inform staff in an open and transparent manner about the reasons for processing their personal data and what decisions will be made as a result of you having that information.

This is particularly important for workplace testing as all lateral flow test results must be registered with Public Health England, which can be done online or by telephone. Depending on the approach taken, and whether the employer partners with a provider, either staff will be reporting their own result or the provider will do so.

Staff involved in workplace testing need to be made aware that they must consent to their test result being shared with Public Health England, and in some cases, their employer.. In terms of reporting results, the government’s operating procedures states that once an individual has issued their consent following receipt of a data privacy notice, the organisation must store a copy of the consent for the duration of testing.

There are various things you can do to mitigate the data protection risks of workforce testing. These include:

  • Be transparent with workers about how data is being processed and what use will be made of it. Produce a standalone privacy notice or update existing notices to cover any such testing.
  • Don’t retain the information for any longer than needed. (bearing in mind that it may be necessary for defending potential personal injury or employment tribunal claims),
  • Consider what data you need to obtain and collect. For example, you do not necessarily need to record negative test outcomes. You may not necessarily need to record positive test outcomes either if, for example, your policy is that employees should simply work from home if they test positive.
  • Regarding any data that is stored, do not use it for any other purpose and restrict access to a small number of people who have a legitimate reason for such access.
  • Ensure you carry out due diligence on any vendors who are carrying out the testing for you and put in place agreements about how they will process the data.

A failure to comply with obligations could result in action being taken by employees orcomplaints may be raised to the ICO, which has a range of enforcement actions available if it finds that a breach has occurred.

Do we need to declare lateral flow or PCR tests as a benefit in kind for employees?

No. HMRC initially stated that tests paid for by employers would be classed as a benefit in kind, which would have meant that employees would have paid additional income tax as the cost of the test would have been deemed as taxable income. However, after a U-turn, an exemption was made for the 2020/2021 tax year. The Spring Budget for 2021 has also confirmed that tests supplied or reimbursed by employers will not count as a taxable benefit in kind. 

The exemption does not apply to antibody tests.

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