Similar to testing being carried out in nursing homes and food production facilities, many employers are considering introducing mandatory Covid-19 test for those who are still working on site. In light of the sharp rise of cases post-Christmas, employees may need to provide a negative Covid-19 test before coming to work.
Although, there are no mandatory government guidelines for such a procedure to take place, and as such practices and private business would have to cover the costs of private testing.
What happens if an employee refuses to take a test?
In instances where employees refuse to undertake testing, in cases where they are not showing symptoms or are not a close contact of a person who has tested positive for Covid-19, could disciplinary sanctions be actioned? There is a competing right between the employer wanting to protect its business and the health and safety of its employees, and an employee’s constitutional right to bodily integrity. Where the employee cannot work from home, and refuses to be tested, the employer can choose to not allow the employee on site and can withhold the employee’s payment until they undergo a Covid-19 test. In circumstances like this, the employee can take their case to the Workplace Relations Commission under the Payment of Wages Act 1991.
Data Protection & the Employee
Due to the fact that Covid-19 testing complies personal data such as processing of health data, employers would need to submit a legal basis for processing such personal data under Article 6 of the GDPR, although an exemption for the processing of special categories of data under Article 9 of the GDPR also exists.
Article 5, 6 & 9 GDPR
If an employer decides to rely on Article 6(1)(f) (i.e. that the processing is necessary to achieve its legitimate interests and those of its employees), they will have to show the necessary reasons and proportionality of such testing, i.e. the employer must ensure that it has mitigated any risks to the rights and freedoms of staff.
If an employer decides to base the processing of Covid-19 on Article 6(1)(f) (i.e. that the processing is necessary to achieve its legitimate interests and those of its employees), it will have to demonstrate the necessity and proportionality of mandatory COVID-19 testing by reference to circumstances in the workplace. The employers also must consider wider considerations such as the level of restrictions imposed on the country broadly and the level of outbreak at the place of employment. If such personal data is retained for the purposes of Covid-19, it should only be retained for a certain number of timer under Article 5 considerations.
The only exemption that may be available to and employer is stated under Article 9, where an employer has special obligations towards end-users in certain sectors such as the pharmaceutical industry, where the work that takes place is broadly part of suppressing the virus.