If an employee has had a coronavirus test, can we require them to disclose evidence of their test results?
Obtaining an employee’s Covid-19 test result will amount to processing personal data for the purposes of the General Data Protection Regulation 2016/679 (GDPR) and information about an employee’s health is a special category of data (sensitive personal data under the Data Processing Act 2018 (DPA)).
In accordance with the GDPR and DPA, there must be lawful grounds for processing such information. Most employers rely on employees’ consent to obtain medical information and process sensitive personal data and if the employee is unwilling to give consent, you will not normally be entitled to the information.
Special category data can be processed lawfully if it is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the data controller. Employers may be able to require an employee to disclose their Covid-19 test if there is a substantial public interest, such as ensuring that the employee self-isolate if they have a positive test. However, there is a risk that this measure could be considered disproportionate particularly if it is enforced on all employees as a blanket measure.
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The Vice President of the COP, Mr Justice Hayden, has issued guidance to assist parties during this challenging time.
The latest guidance with all relevant updates on developments is available on the judiciary website here.
Aside from the CBILS Scheme, the Government have, or are in the process of, implementing several different schemes to support businesses financially through the Covid-19 outbreak.
Those who are eligible will be contacted directly by HMRC based on tax returns they have received. If you are eligible you will be asked to fill out an online application. HMRC will pay applicants directly.