Employee Covid-19 tests shrouded in legal uncertainties

Covid 19 swab test
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Employers looking to implement their own Covid-19 testing procedures for staff, particularly in countries where relatively little testing has taken place, need to fully consider the legal implications before proceeding, writes Adam McCulloch.

Amazon CEO Jeff Bezos has said the online giant is developing Covid-19 testing capabilities as a first step toward a system of regular checks on its employees globally. Cases of Covid-19 have been reported at about 60 of Amazon’s 110 facilities across the US.

In an annual letter to shareholders, Bezos said Amazon would look to introduce regular testing for all staff – including those who showed no symptoms. Last week he said the company had assembled a team of scientists, managers and software engineers to build internal testing capacity, and was hoping to have its first testing lab up and running in the near future.

“Regular testing on a global scale, across all industries, would both help keep people safe and help get the economy back up and running. For this to work, we as a society would need vastly more testing capacity than is currently available,” the letter stated.

But will such testing be mandatory for Amazon staff and where would mandatory testing of employees who show no symptoms sit legally?

Until now the availability of testing has been restricted, certainly in the UK. In other countries, such as Germany and South Korea, the need for employee testing is much reduced as the national health authorities have succeeded in tracing and tracking much higher proportions of the population than those in the UK or USA.

Amazon, however, is looking to go further than the temperature tests it has used so far to indicate which staff may be carrying the virus.

But the letter emphasised that the company was still in the early stages of its mammoth initiative, and the way forward wasn’t entirely clear: “We’ve begun the work of building incremental testing capacity,” Bezos writes. “A team of Amazonians – from research scientists and program managers to procurement specialists and software engineers – moved from their normal day jobs onto a dedicated team to work on this initiative. We have begun assembling the equipment we need to build our first lab and hope to start testing small numbers of our frontline employees soon. We are not sure how far we will get in the relevant timeframe, but we think it’s worth trying, and we stand ready to share anything we learn.”

However, there are legal obstacles to widespread testing conducted by employers. Employment law specialist and barrister Vince Toman, from legal firm Lewis Silkin, says: “It seems like a good idea to help keep employees safe by identifying those employees that are non-symptomatic with Covid-19. But to blood test all employees is fraught with difficulties.”

Information about an employee’s health is ’sensitive personal data’ under GDPR and the employer would need the express written consent of the employee before the information could be shared” – Vince Toman, Lewis Silkin

He adds that, unlike the US, it is generally prohibited here for an employer to require employees to undertake random medical testing to address a worker’s medical condition.

Toman says: “Directed testing may be justifiable in certain industries if there are safety concerns, such as driving trains or flying a plane. Blood-testing of staff has been used in outbreaks of listeria/salmonella, for example, but these are very specific tests to prevent harm to the general public and are conducted by public health officials and the HSE.

“Information about an employee’s health is ’sensitive personal data’ under GDPR and the employer would need the express written consent of the employee before the information could be shared.”

He says that whereas contracts may require an employee to submit to random drug testing, it would be unusual for firms to have a term in their employee contracts allowing for medical testing.

“The outcome of the blood tests would come within the remit of the Access to Medical Reports Act 1988 and would require the employee’s consent for the medical records to be shared with the employer,” adds Toman. “In normal circumstances the employee generally requests that they see the medical records before they are supplied to the employer, and the employee can at this point refuse to allow certain information to be shared/disclosure.”

Chris Cook, partner and head of employment and data protection at SA Law, also identifies the risks involved in keeping businesses open while testing employees: “Employers are under a duty to comply with their health and safety obligations. Failure to do so can lead to financial penalty or director imprisonment. Continuing or re-opening businesses during the coronavirus crisis where employees could have Covid-19 but be asymptomatic is therefore a risk for not only the employees themselves, but the financial security of their employer and everyone who comes into contact with the staff, including suppliers and customers.”

He adds: “It is essential that employers obtain consent from their employees to carry out such testing beforehand, and that the test results are handled with appropriate regard to data protection considerations. Every testing procedure has the potential for flaws and employers should be aware that such testing is not a definitive answer as to whether their employees are positive for Covid-19.

Cook advises that employers who go down the testing route need to bear in mind that an employee who might have tested negative could encounter someone with Covid-19 the very next day and become infected. “Due consideration will therefore need to be given to regular further tests on staff moving forwards, which will no doubt be expensive and difficult to administer,” he says.

In the US, as elsewhere, employees are going to want certainty over whether their places of work are safe or not, says Rajaie Batniji, a doctor and founder of the employer health programme Collective Health, quoted at the Marketplace website last week.

“I think it’s inevitable that employers are going to have to take the lead on getting broad testing for Covid done,” Batniji says.

He adds that many workers will be used to getting seasonal flu vaccines and other medical tests at work. But, Marketplace reports, federal law generally protects workers from medical evaluations by employers.

Edgar Ndjatou, executive director at the nonprofit Workplace Fairness, tells the website: “There’s so many things that would have to be worked out before allowing the employer this type of access to employee medical information.”

That could mean job guarantees for workers who were found to be ill. Also, employers could have to test workers repeatedly, which would require a massive ramp-up of testing capacity.

It is likely that most employees would welcome testing by employers after all, who would want to work not knowing who around you may be carrying a deadly virus? But any organisations implementing plans would need to operate under a complex and potentially risky protocol.

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