Recent press reports have raised questions about the costs of these private tests and how effective they really are.
We expect the availability of testing of all types is likely to undergo rapid change in the near future, so it’s important not to use tests that have not been adequately evaluated for use in a particular setting because the results could be misleading and harmful.
The NHS, Public Health England and Medicines & Healthcare products Regulatory Agency (MHRA) are evaluating important questions regarding accuracy, effectiveness, when these tests should be used and what advice patients should be given based on the results.
Many employers are looking at testing as part of their strategy to get employees back into work, but before you embark on any testing, Gallagher recommends you clarify your legal position to ensure you understand what you can and cannot do. Gallagher works very closely with the employment team at Blake Morgan, so we asked them to provide us with their views.
Holly Cudbill, Associate in the Blake Morgan Employment Team says "This is a question that came up in a recent webinar and is something that many employers are considering as part of their strategy to get employees back into work. Leaving to one side the issues over availability and effectiveness of Covid-19 tests, there are significant risks for employers who want to go down the route of testing employees. First, there is the issue of who to test. If employers, for example, seek to test those they consider might be most vulnerable or susceptible to Covid-19, the decision could be discriminatory on the grounds of age or disability."
Holly adds "In addition, all health information is a "special category" of personal data under the GDPR and Data Protection Act. This means that the employer will need two lawful bases for collecting personal data (i.e. the test results) and one of these will almost certainly need to be the consent of the employee. If the employee refuses, the employer is probably not going to be able to proceed. Even if the employer does have the lawful bases, it also needs to make sure that it has carried out a Data Protection Impact Assessment and that its Privacy Notice and Appropriate Policy Document specifically include medical testing."
Holly concludes, "My advice to employers, outside of the healthcare sector, is to concentrate on making your workplace Covid-19 secure, rather than to focus on testing staff at this time."
We will of course provide updates, as matters develop.