By Gillian MacLellan

Testing, testing, testing...Throughout the pandemic we have heard that testing is central to controlling the virus. Until now, testing has been a public health measure rather than the responsibility of employers. Last week reports emerged that the UK Government is urging employers to carry out regular workplace testing to keep the economy functioning throughout winter.

Discussions are reportedly taking place between the UK Government and business organisations to consider how workplace testing might operate. For example, will employers who are conducting regular testing be able to stay open during a local lockdown? At this stage the detail is unknown.

A few private companies have entered this space but they are the exception. Amazon, for example, announced in April that it planned to test its US-based staff. It was also reported that Credit Suisse offered free antibody tests to the first wave of employees returning to its head office. One of the key issues with private workplace testing is the cost, currently around £100 per test. Unless the cost goes down, or the government pays for the tests, it will be unrealistic to expect that regular testing will take place within all workplaces.

Private testing by employers is not only expensive, it comes with data protection complications. Care will need to be taken when processing what is “special category” data. The Information Commissioner’s Office has produced guidance on this area which confirms that a data protection impact assessment would be the starting point for employers; this guidance is a must read for all embarking on this path.

Another reality employers have to embrace in relation to the world of Covid testing is the impact public health testing will have on their workplace. This is a fluid situation. The return of children in Scotland to school has shown how difficult an area this is to get right and how tricky it can be to pick the sweet spot between being prudent and being over-cautious. Either because of an individual school’s policy or because of parental choice, thousands of children with colds and runny noses but not necessarily demonstrating the key Covid symptoms have undergone testing. This has led to nearly 17,500 school children in Scotland being tested in a week with only 49 positive results returned and the testing services being completely overwhelmed. From an employer’s perspective it has also meant a lot of employees isolating with their children until they have test results back.

There are undoubtedly lessons employers can learn from this experience, most importantly the necessity of having a clear and sensible position on when Covid testing is necessary, particularly in relation to typical cold symptoms as we go into the winter months.

Employers also need to have contingency plans in place to deal with the inevitable increased level of “absence” in the workplace over coming months as staff await test results, either for themselves or family members. If these employees can work from home, this is less of a problem; if not, employers need to add this to their Covid worry list and build it into contingency plans. A key question we are being asked is whether employees should be paid their usual earnings whilst isolating and awaiting test results if they cannot work during this time. Much here will depend on an employer’s sick pay policy which should factor in that the rules around statutory sick pay have been updated to cover the situation where an employee is isolating because a member of their household has Covid symptoms as “deemed incapacity”. But on top of any legal and sick pay policy considerations, employers need to consider the potential ramifications of not paying employees usual earnings whilst they self-isolate and await test results as there is a strong chance this approach will dissuade some employees from following the rules.

Gillian MacLellan is a partner at international law firm CMS.