Workplace COVID Testing & Data Protection – Risk v Reward?

As the UK takes its first tentative steps out of the long, dark tunnel of the last year and the COVID-19 Pandemic, businesses across the UK are gearing up to welcome staff back to their desks, even if some may still continue to work from home at least some of the time.

The UK Government’s been very clear in emphasising that workplace COVID-19 testing will be crucial to its plans for a gradual “reopening” of the UK economy, and businesses are being encouraged to play their own part in that process through employee lateral flow testing with the hope that this will help to reduce the spread of the virus and protect those who can’t work from home.

“As many employers as possible” are being asked to commit to regular testing of their staff at least twice a week, even though participation remains voluntary. Those with less than 50 employees, sole traders and the self-employed have been encouraged to access community testing, and larger business given the option of setting up their own programmes or outsourcing to third-party providers.

Although some businesses may feel that a simple temperature check on entry may be the most straightforward way to manage this process rather than a more detailed regime involving the collation of lateral flow test results, collating any information which relates to the health and COVID status of an individual will involve the processing (though collection, further use and sharing it with third parties) of “special category” personal data, meaning that they’ll also need to consider their data protection obligations.

Data protection specialist and Head of Creative, Digital & Marketing, Steve Kuncewicz, highlights the importance of businesses complying with their terms to ensure that any data collected is dealt with lawfully, fairly, transparently and responsibly in line with the various data protection principles and enhanced requirements dealing with the collection and use of “special category” health data.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of BLM. Specialist legal advice should always be sought in any particular case.

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Partner, Head of Creative, Digital & Marketing sector group

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