Covid-19: Asymptomatic workplace testing

The Government has recently expanded its workplace testing programme so that employers can now register to order rapid tests for employees with no coronavirus symptoms which can be taken either in workplaces or at home.

The workplace testing programme uses lateral flow tests (LFD) to detect the virus in 30 minutes. The test kits are entirely free of charge until 30 June 2021 for businesses that register before 11:59pm on 12 April 2021.

Registration for free test kits will close on 12 April; after this date businesses will still be able to access tests through private providers and community testing sites.

You can register to order tests if:

  • your business is registered in England; and
  • your employees cannot work from home.

Testing staff is not a legal requirement, however, the Government is recommending that private-sector employers offer their workforce (who are on-site) access to a minimum of two lateral flow tests every week. This will help identify staff who are carrying the virus without displaying symptoms, reducing the risk of transmission. As such, some employers might want to introduce testing as part of their workplace policy.

There are now four main ways for businesses to carry out testing of their staff

Option 1: employer-led onsite testing

Employers can set up their own asymptomatic on-site testing programmes, outside of that which currently exists with the NHS Test and Trace service.

For more information, register to order coronavirus tests for your employees.

Option 2: use a third-party provider

Third-party private-sector (non-NHS) providers may be able to provide on-site Covid-19 testing services.

Employers who would like on-site testing but would prefer a private provider to organise and run the testing on their behalf can partner with one of the providers on the list of providers: general testing.

Employers will need to pay for this service, but are still eligible to order the free Government testing kits by registering to order workplace coronavirus tests. The onus falls upon the employer to ensure that they order the test kits.

In partnering with a third-party provider, responsibility still lies upon the employer to ensure that they register to order a sufficient number of test kits.

Option 3: community testing

For organisations in the public and private sector that have fewer than 50 employees, access to testing is through local authorities who are establishing testing sites for those without symptoms within their local areas. ​

If you are an organisation with fewer than 50 employees, a sole trader, self-employed or a member of the general public, visit your local authority’s website to find out more about their testing services.​

Option 4: home testing

Businesses with over 10 employees, who cannot offer on-site testing due to a lack of space or because they operate across multiple sites, are now able to supply home test kits to distribute to their employees. These self-test kits will be picked up by staff from their employer with clear instructions as to how to take the test. Staff will then complete the home test in the normal way, before reporting their results to the NHS using the gov.uk address provided.

Further guidance and support

A supplementary guide for private-sector employers and third-party providers who want to offer workplace testing for asymptomatic employees is available. The Government has also set out an employer’s legal obligations with regards to conducting on-site testing, however we recommend specific legal advice is sought before employers conduct on-site testing themselves. Employers must make sure they follow data protection law if they test staff for coronavirus.

Further guidance on workplace testing is also available from the Acas website and CBI’s website.

At the start of this week, over 100,000 businesses had already registered for the free tests. We expect the tests will prove useful for those office workers who can no longer work from home as a result of their working arrangements and/or their mental or physical health and who will therefore be attending the office more frequently in the coming weeks.

Please get in touch with your usual Macfarlanes contact if you wish to discuss these issues further.

This article was co-authored by trainee solicitor Constance Shaw.