To test or not to test: considerations for offering antibody tests to employees.

The science and validity of rapid antibody testing kits is still very much up for debate but recent developments, including the approval by Public Health England of the Roche test has brought the prospect of antibody tests back to the forefront of discussion. As the picture becomes clearer and businesses look at ways to facilitate a return to face-to-face operations, such tests have the potential to provide comfort to both businesses and employees.

The key considerations are as follows:

• Regulatory: There is no one size fits all approach for businesses contemplating supplying antibody tests to their employees. Generally the supply of such devices will be permissible where they are either a) being administered by medical professionals; or b) consist of mouth or nose swabs that are sent off for laboratory analysis. Conversely, there are currently no rapid antibody tests that can legally be supplied for at home use and any supplier purporting to offer such a test kit is committing an offence.
• Employment: Employees cannot be forced to take an antibody test and, to the extent that an employee refuses to take an antibody test, employers must consider their next steps carefully. Businesses will also need to be careful that decisions they take based on the testing data don’t prejudice certain groups of employees.
• Data Protection: Results from an antibody test will be medical information and as such classify as special category data. Businesses will therefore need to have a legitimate reason for possessing and processing such information from employees, most likely explicit consent. The question of employee consent (in respect of the processing of their special category data) will be one that needs special thought due to the asymmetric relationship between employee and employers.

It should be apparent that, if a business wishes to implement employee testing, there will be a number of legal considerations including ensuring compliance with the MDR, GDPR and employment law. In particular, careful thought will be need to given to the motivation for offering the tests and whether this can be achieved whilst complying with GDPR and relevant employment legislation. These issues will need to be dealt with sensitively by employers, particularly in the current environment. It is therefore important that businesses take time to consider all the implications of offering any testing to employees and ensure that they are up to speed with the most recent regulatory guidance.