Any testing you carry out to check whether your staff have symptoms of Covid-19 or Covid-19 involves processing staff’s personal data and so the guidance makes it clear that you would need to comply with the GDPR and the Data Protection Act 2018.

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Your lawful basis for testing employees

The ICO suggests that “legitimate interests” is likely to be the most relevant lawful ground for processing for private employers, i.e. it’s in your legitimate interests to provide a safe workplace to protect your staff. You also have a statutory duty to protect your workers.The health data constitutes special category personal data, so you also need to identify a relevant condition for processing. The Information Commissioner’s Office suggests that the relevant condition will be that the processing is necessary for the purposes of carrying out your obligations under the employment law, i.e. your health and safety legal obligations

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Compliance

You will need to demonstrate compliance and conduct a data protection impact assessment on the proposed testing process prior to any implementation. It is wise to keep records to demonstrate your compliance with the GDPR data protection principles, including processing the data lawfully, fairly and transparently and ensuring that the data is accurate, adequate to fulfil your stated purpose, relevant to that purpose and limited to what’s necessary for that purpose.

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Data sharing

When sharing the fact that someone has tested positive with other staff, you should avoid naming individuals if possible and not provide more information than is strictly necessary.

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On-site Temperature Checks

In some instances the employer might wish to use on-site temperature checks (such as non-contact digital thermometers to take readings on entry and exit) or thermal cameras for testing and monitoring staff.  The Information Commissioner’s Office guidance stresses the need for transparency and for any monitoring to be both proportionate and necessary, i.e. it’s important to consider whether there are other less intrusive means that could be used to achieve the same results.You cannot force an employee to have a coronavirus mouth or nose swab test against their will. However, you should be able to implement a policy that workers should not be allowed to attend their workplace, unless they have carried out the test because you have a duty to protect your staff and workplace.It is advisable to follow government guidance on re-opening of the work places.  The Information Commissioner's Office guidance can be found here https://ico.org.uk/global/data-protection-and-coronavirus-information-hub/ We also recommend that you review your policies and procedures. Please see our other articles on this subject.For more information please get in touch on info@barnes-law.co.uk.