Can an employer insist on referring an employee for testing if they or a member of their household have Coronavirus symptoms?

According to the Government’s coronavirus (COVID-19) guidance on getting tested, as well as testing patients to confirm their clinical diagnosis, it is also testing:

• all essential workers, including NHS and social care workers with symptoms

• anyone aged over 65 with symptoms

• anyone with symptoms whose work cannot be done from home (for example, construction workers, shop workers, emergency plumbers and delivery drivers)

• anyone who has symptoms of coronavirus and lives with any of those identified above

Additionally, it is testing:

• social care workers and residents in care homes (with or without symptoms) both to investigate outbreaks and, following successful pilots, as part of a rolling programme to test all care homes

• NHS workers and patients without symptoms, in line with NHS England guidance

Information relating to a person’s health is special category data for the purposes of Regulation (EU) 2016/679, the General Data Protection Regulation (GDPR). For further information generally on processing health information in the employment context, see Practice Note: Employee health information under the GDPR.

The government has published privacy information (described in the guidance on getting tested as a privacy notice) for individuals who have been invited to undertake a coronavirus priority virus test. According to the privacy information, the test is voluntary and the individual does not have to take it.

We are not aware of any statutory provisions enabling an employer to insist that an employee must take the coronavirus test. If an employer wishes to insist that an employee must undertake the test, consideration should be given to:

• whether there is any contractual provision to require the employee to do so; even if there is, an employer cannot physically compel an employee to take the test, however, failure to comply may lead to disciplinary sanctions

• whether it may be regarded as a reasonable instruction

If a test is taken, presumably the employer will want to know the result so that it can act accordingly. Where an employer processes an employee’s health information, eg their coronavirus test results, it will need to ensure that processing is lawful, which means (among other things) ensuring that:

• the data protection principles are complied with

• there is a lawful condition for processing personal data

• there is a specific condition for processing special category data

For further information, see Practice Note: Employee health information under the GDPR—Complying with GDPR and DPA 2018.

Depending on the circumstances, relevant lawful conditions might be:

• compliance with a legal obligation (eg to protect health and safety)

• public interest (depending on the nature of the employer, and the employee’s role)

• legitimate interests

See Practice Note: Employee health information under the GDPR—Lawful conditions for processing personal data (Article 6).

Depending again on the circumstances, relevant specific conditions might be:

• obligations and rights under employment law

• substantial public interest

• public health

See Practice Note: Employee health information under the GDPR—Specific conditions for processing special category data (Article 9).