Testing and tracing is poised to become a central part of the government’s strategy as it seeks to reverse the coronavirus shutdown that has seen many workplaces close their doors and millions of workers sent home.
The approach is likely to be pursued by central government as well as by some individual employers.
The hope is that by identifying who has coronavirus and who they have been in contact with, those who are potentially infectious can go into isolation. This could reduce or even eliminate transmission of the virus.
However, it can’t just be imposed.
Concrete plans from the government are needed, setting out how it will ensure fair and equal access to testing on the one hand, and responsible and proportionate use of people’s data on the other.
For trust is crucial. Without it, the necessary cooperation of working people to make the testing and tracing system work might not be forthcoming or sustained.
We need government-issued guidance on testing, agreed with unions, to employers on their responsibilities to workers as we start returning to work away from the home.
It is only with these guidelines that we will be able to ensure the safety of workers and the safety of customers, clients and patients.
We note that fair and equal access to testing depends on the government, unions and employers acting together to:
- ensure workers in at-risk groups and workers who are family, friends or carers for individuals who are at greater risk are prioritised but that all workers can be tested,
- agree practical steps that so that all workers are able to get to and from testing sites and to do so safely,
- make sure all workers, including casualised and agency workers, can access testing without detriment.
Alongside this, must stand a robust but proportionate privacy regime to both protect workers and maintain their confidence in the testing and tracing process.
It should include strict adherence to existing privacy rules; a clear set of standards to be followed before the implementation of tracing, including within the workplace; and a strengthened legal regime underpinning workers’ voice to ensure that trade unions are consulted about the use of technology in the workplace and workers’ consent is sought regarding the use of their data.
The use and storage of data in the workplace are growing issues for trade unions and workers, especially as more people work from home.
More work needs to be done to ensure that the right legal and regulatory frameworks are in place to protect people’s sensitive data and govern the use of it, whether it is obtained through national testing and tracing initiatives or various forms of workplace testing and/or monitoring.
Meanwhile, it should be a key principle that workers have a say when new technology is introduced into the workplace.
Recommendations
The ability of workers, including casualised and agency workers, to access testing, and then to take steps to limit the spread if found to have Covid-19, is essential to slow the spread of the virus, to protect the UK population and ensure economic recovery.
The government must act on the best intelligence and a sound understanding of the nation’s infrastructure when making decisions about its testing policies.
To ensure people can return to work safely and secure our health and economic recovery we recommend the government, in consultation with unions, take the following steps:
- Make clear workers are entitled to paid time off at their usual rate of hourly pay to attend testing during their usual working hours.
- Issue clear guidance on the additional steps and responsibilities employers have to workers who are at greater risk and to workers who are family, friends or carers for individuals who are at greater risk. Guidance should include how to travel safely to and from testing sites and which groups of workers should not be expected to travel but should have access to home testing.
- Ensure testing sites are easily accessible for workers who do not have independent means of transport and provide mobile testing units that can travel to remote work sites and increased access to home tests.
- Ensure testing site opening hours do not disadvantage shift workers.
- Ensure home testing is available for workers who cannot travel safely to test sites whether that is due to lack of appropriate private or public transport, because they are too unwell to travel, have health conditions, mobility impairments or caring responsibilities.
But alongside greater testing, there should be strong management of the data that could be sought and held by government and employers.
We need to see:
- employers prevented from having access to data gleaned from any state-run app that is rolled out
- respect for existing privacy rules including those embedded in the General Data Protection Regulation (GDPR)
- a commitment that contact-tracing apps should only be used in the workplace if specific requirements are met including setting out the purpose of the app, the type of data collected, how long the data is kept, ensuring workers give their consent and involvement of recognised trade unions in discussions about the use of the app
- trade unions given a legal right to be consulted before an employer starts to collect data and make data-driven decisions in the workplace.
Meanwhile testing and tracing can only be effective if workers have the financial security to stay at home.
There have been small improvements to statutory sick pay during the coronavirus outbreak.
With the introduction of testing and tracing it is likely that many workers will find that a state-run or employer-operated tracing regime suggests that they have been in contact with someone with coronavirus.
Their employer or the health service might advocate self-isolation at least until testing has been carried out. It is vital in these circumstances that those unable to work from home continue to receive full pay (and all those in a workplace should be entitled to the same treatment whether or not they are full time employees) or at the very least contractual sick pay or SSP. It must be recognised that this could happen to a worker on multiple occasions.
There therefore remains a need to extend eligibility to SSP the two million workers who currently do not get it because they do not earn enough. We need to abolish the lower earnings limit for SSP.
And the level of £95.85 a week is inadequate to help people avoid hardship. The weekly level of sick pay should increase to the equivalent of a week’s pay at the Real Living Wage.
Testing
Prioritising testing
Workers with symptoms and to who Covid-19 presents a greater risk, such as those who have been asked to shield [1] and those in at-risk groups [2] , should be prioritised for testing.
While those most at risk should take precedence, as more people start to return to work outside of the home, it is imperative that all workers who need to be tested (because they exhibit symptoms themselves or because they have been in close contact with someone who has tested positive or has symptoms) for Covid-19 should have access.
The government must produce guidance outlining the steps employers must take to ensure workers can access testing. This guidance should then feed into employers’ Covid-19 risk assessments.
The government guidance for employers, agreed with unions, must be clear on the additional steps and responsibilities employers have to workers who are at greater risk and to workers who are the family, friends and carers of individuals at greater risk.
Accessing testing
The ability of workers, including casualised and agency workers, to access testing, and then to take steps to limit the spread if found to have Covid-19, is essential to slow the spread of the virus, to protect the UK population and ensure economic recovery.
It important the government acts on the best intelligence and a sound understanding of the nation’s infrastructure when making decisions about its testing policies. Therefore government should consult union and employers when considering testing site locations and operational hours, as well as deciding which groups of workers will be prioritised for home testing.
Testing site locations
Where workers are expected to travel to access tests, they must have easy unimpeded access to test sites to ensure those who need to be tested are able to. In this, sites’ locations will be key.
The government must consider how far workers will need to travel to get to the site and how long that journey could take. Many workers do not have a car and therefore will not be able to travel to locations that are not on public transport routes.
We have had reports of testing sites located in hard-to-reach locations. This makes it difficult for workers to access testing and less likely infected workers will be tested.
One example was a testing site located within an IKEA car park. The infrastructure was not designed for large volumes of traffic. As a result, there were long queues to get to the site and many individuals were turned away.
Another concern raised with us is that workers whose jobs are in remote locations have been unable to access testing. We know that many distribution hubs and factories are often located outside of towns or villages. In some instances, employers provide transport to and from the workplace for their workers.
It is imperative the government ensures that these workers can access testing. To do this the government’s testing strategy must include provision for testing at testing sites, at work by mobile testing units and at home through the provision of home testing. Safe travel to and from testing sites
Workers who take the responsible step to be tested should not as a result increase their exposure to the virus or risk becoming infected.
It would, for example, be problematic if workers used carpools to go to test centres. This could lead to further transmission of Covid-19 for those sharing the journey.
Equally, transmission of the virus could occur if individuals are asked to access testing sites on public transport.
Consider this case we had put to us:
A care home manager has a worker who needs testing. The manager is the only person at work who owns a car and has a license. The test site is not on a public transport route and is far from the care home. How does the manager ensure her workers are able to get to, and from, the testing centre while minimising the potential spread of the virus?
The government must produce guidance, in consultation with unions, for employers. This should set out the requirements for safe travel to and from the testing site and prioritise access to home testing for groups who cannot travel safety to test sites (because of lack of access to a car, being too unwell to travel, wider health conditions, mobility impairments or caring responsibilities).
Testing site opening hours
Many workers are in jobs whose hours are not 9-to-5. Additionally, workers with caring responsibilities might find it difficult to attend testing outside of typical working hours.
A worker’s ability to go for testing could be further compromised if they face reprimand or detriment for attending testing during work hours or risk incurring a financial loss. Practical steps must be taken to ensure all workers can access testing sites during their usual working hours.
An example put to us was of a worker in a large distribution centre in the Midlands working night shifts that start around 8pm and end at 5am. This worker would find it difficult to access a testing centre open from 9am to 5pm.
Another group of workers who would find accessing opening hours are those caring responsibilities. Members have told us they would find it difficult to attend testing outside of work hours because childcare / school hours replicate the 9-5 working pattern.
To address this, the government should ensure testing site opening hours do not disadvantage shift workers or those with caring responsibilities from attending testing. They must also ensure that workers are entitled to paid time off at their usual rate of hourly pay to attend testing during working hours.
Workplace testing
Some employers may seek to undertake workplace testing for Covid-19. [3]
The workplace is clearly not a suitable place for the testing of those with coronavirus symptoms given the need to protect the health of the affected worker and prevent contagion to their colleagues. They should be in social isolation at home, receiving either full pay or sick pay.
It is generally not lawful to require workers to have any particular medical treatment or procedure, such as taking a coronavirus test.
But, as with drug and alcohol testing, it may be something an employer might seek to require on the grounds that the specific nature of a worker’s role requires it.
We would urge that where employers seek to introduce a workplace testing scheme, whether they intend it to be obligatory or voluntary, that they consult with trade unions. This would cover issues like the purpose of testing, the processing of data, and guidelines for those who have been tested but are awaiting results.
In general, employers should also follow the broad principles we set out above for national Covid-19 testing.
Testing should be available to all workers in a workplace, not just employees. It makes little sense, if the aim of testing is to protect a workforce, to exclude for instance contractors who are operating in a workplace.
Workers should be paid for the time spent undertaking a test, and time off taken while waiting for test results, at the request of an employer.
Employers should also be acutely aware of the special responsibilities attached to the handling of healthcare data. [4]
Tracing
Coronavirus tracing apps
While testing is a key part of the picture, tracing apps are increasingly viewed by government and some employers as essential tools for a return to normality. [5] However, the effectiveness of tracing apps has been questioned. [6]
At state level, the UK government has piloted the use of an app called NHSX to track people reporting Covid-19 symptoms and to alert those that they have been in contact with. [7] It is also reported to be developing a second app. [8] This latter one harnesses technology being developed by Apple and Google to assist in contact tracing for governments. [9]
Meanwhile there have been private sector initiatives to provide employers with tracing data on their workers amid reports of employers “panic-buying” monitoring technology to keep tabs on their workforces. [10]
Enlighted, a subsidiary of Siemens, has developed software that can monitor where infected employees have been, who they met, and even which floors of an office they visited. This is intended to both allow executives to understand the extent of the exposure, but also save money because they know which rooms need a deep cleaning. The system can also be used to enforce social distancing. For example, managers can be alerted if too many employees are congregating in a small space. [11]
It has also been reported that companies including PWC, the global consultancy, are racing to build surveillance tools that will do a similar job. [12]
Employer monitoring to assist in the tracing of coronavirus is not limited to apps of various kinds.
Amazon, for example, is reported to be undertaking temperature checks on workers. [13]
Others are exploring the use of wearable devices which throw up similar issues of worker privacy.
How do they work?
Different technologies work in different ways. For instance, apps available in Spain tend to focus on helping the user self-diagnose with an option to provide geolocation information.
In South Korea, the Self-Quarantine Safety Protection app uses GPS to monitor and track infected citizens in self-quarantine.
Singapore’s TraceTogether app uses Bluetooth signals to ascertain whether participating mobile phones have been in contact. This is similar to the NHSX app being piloted in the UK.
In Belgium, the Port of Antwerp has launched the use of wristbands which work without any internet connection. If workers come too close to each other, an alarm is triggered.
Likewise, several companies in the UK are reported to be testing a wearable device called Bump, which will warn employees if they come closer than the government-mandated distance of 2m from each other. This uses radio frequency signals to measure how close someone is. [14]
The way the data is handled is also different. In the UK the matching process for NHSX, which works out which phones to send alerts to due to potential contact with a Covid-19 carrier, happens on a centralised computer server.
This contrasts with Apple and Google's decentralised approach - where the matches take place on users' handsets.
Use of workers’ data
The data gleaned by tracing apps and similar technology, raises anew questions about what data the state, technology companies and employers should hold on individuals, the security of that data and the uses to which it can be put.
For instance, in the workplace, is it appropriate for an employer to monitor when someone is away from their desk, for example? What about movements outside work? What consent is required?
The basic legal position is that everyone has the right to privacy and a family life, even in the workplace.
These rights are protected by Article 8 of the European Convention on Human Rights which forms part of UK law, thanks to the Human Rights Act 1998. [15]
The Ethics Advisory Board for the state-run NHSX tracing app piloted in the UK has said that any collected should be minimised and protected as much as possible.
But concerns remain about outside bodies having access to its data. [16]
The Joint Committee on Human Rights, a body of MPs and peers, has recommended that the app should not be rolled out nationally without a number of guarantees including the following:
- Privacy protections enshrined in primary legislation.
- Oversight by an independent body.
- Transparency about the data being collected and its use. [17]
It is notable that the committee believes that legislation should contain prohibition against data sharing with employers.
These would be important safeguards and should be put in place before any rollout.
But we also need to ensure that the right to privacy is given important protection in the workplace.
We know from previous innovations that new technologies that monitor workers can improve working lives. For example, body cameras worn by staff who often face hostile situations can stop tense situations from escalating and be used to collect evidence where these workers are assaulted. [18]
But new technologies can also threaten workers’ privacy rights.
The trade union GMB has raised concerns about the lack of privacy protections in an app targeted at workers in the adult social care workforce which was supposed to distribute policy updates and infection control advice through smartphones. [19]
Even before the coronavirus outbreak employers were collecting increased amounts health-related personal data from the workforce. For example, some have used sleep monitoring devices to enhance productivity by helping ensure their workers are well rested.
There is a risk that data from tracing apps when operated at workplace level and placed in the hands of employers will be combined with vast quantities of other data.
This could lead to employers having control over data that can be used to make workforce decisions that are unfair, unsafe and discriminatory.
Many of these data methods have the potential to encroach on a worker’s personal life, particularly with devices that collect health related data.
We already know that workforce data analytics and the use of algorithms and machine learning systems have made it easier to [20] :
- make automated decisions that can significantly impact an individual’s key working terms and conditions.
- create profiles of workers, which are then used to predict a worker’s future behaviour.
- supervise and monitor all workers, at all times, and to detect all occasions of noncompliance with specified tasks, in real time [21]
- seek to drive efficiency by means of work intensification and less autonomy in the workplace.
- discriminate against workers [22] . For example, employers can use data sources to filter out groups of prospective candidates that they don’t want to employ or don’t want to promote.
Workers might not be aware of the sheer range and scale of workforce/personal data that an employer processes. And the data driven decision-making processes that shape the key junctures in their employment relationship (hiring, promotions, disciplinaries, firing) can be hidden and complex.
When it comes to contact tracing apps, there is also a risk that black and minority ethnic workers might be more likely to be asked to download them. A TUC report ‘Lets talk about racism’ [23] showed that BME workers experience significant discrimination in the workplace, including excessive surveillance and scrutiny by colleagues, supervisors and managers.
Unions need to be prepared to act as the safeguard that prevents employers from misusing data.
Many already have experience of doing this, for instance in negotiating drug and alcohol testing policies with employers. [24]
But they need the government to provide the legal underpinnings to allow them to undertake this role, particularly when it comes to new developments such as tracing apps.
Data protection
Existing data protection law places significant limits on when and how employers should use new technology to monitor their staff in and outside the workplace.
The General Data Protection Regulation (GDPR) imposes strict requirements on organisations concerning the security and transparency of the personal data that they process.
Employers must comply with the GDPR when processing workforce data.
Data protection law gives workers important individual rights, including the right to:
- be informed about how and why their personal data is gathered and how it will be used
- request an easily accessible copy of the personal information that an employer holds about them. The information must be provided free of charge and within one calendar month. In limited circumstances, employers can withhold information, for example where the disclosure of information may breach a duty of confidence to someone else, where providing the information would require ‘disproportionate effort’ or whether the information might undermine on-going negotiations between an individual and their employer
- ask employers to correct, delete or destroy any information held about them that is factually inaccurate. This could be particularly important in relation to disciplinary records or information held about health.
The law also places limits on when employers can use automated decision making in the workplace.
It should also be noted that health data is classed as special category data under the GDPR and should therefore be treated with greater care because collecting and using it is more likely to interfere with their fundamental rights or open someone up to discrimination. [25]
The GDPR defines health data in Article 4(15):
“‘data concerning health’ means personal data related to the physical or mental health of a natural person, including the provision of health care services, which reveal information about his or her health status”.
This clearly encompasses information that could be gleaned from tracing apps.
Article 22(4) says that you cannot use special category data for solely automated decision-making (including profiling) that has legal or similarly significant effects, unless you have explicit consent or meet the substantial public interest condition. You also need suitable measures in place to safeguard the data subject’s rights, freedoms and legitimate interests. [26]
The Information Commissioner’s Employment Practices Code sets out helpful guidance on how data protection rules affect the workplace. [27] This Code, however, does not have legal effect.
It is important that unscrupulous employers do not use data obtained for reasons relating to coronavirus for other purposes, such as identifying staff movements (including who they socialise with) or combine it with other data to assess candidates for promotion.
It is crucial that this law and the guidance that surrounds it are adhered to when it come to testing and tracing regimes.
Trade union rights regarding data
However, it is possible to comply with GDPR and still use workforce data to make decisions that will have a significant impact on the workforce.
Also, too few people know about their rights and how they might apply in their workplace.
Many feel unable to challenge employers on data and surveillance issues. This could be for fear that they will lose their job or be victimised at work.
This is why it’s important for unions to negotiate data policies that cover how workforce data will be collected, stored and used, including health data.
Tracing apps or similar technology should only be used after agreement between employers and recognised trade unions on:
- the purpose of the app
- the type of data collected
- a limit on the use of technology to the period of the pandemic
- how long the data will be kept,
- methods for obtaining workers’ consent.
Unions should be assisted in this work with stronger collective rights to supplement the individual rights above.
GDPR provisions should be extended to create a new legal duty that trade unions be consulted before an employer starts to collect data and make data-driven decisions.
Involving unions in the design of workforce data-related processes, including but not limited to testing and tracing, would bring greater transparency to the data that employers collect and the reasons they collect it.
It could also ensure that there is a role for humans in the data processing procedures, and that automated processes include a role for union reps who can support workers and challenge unfair decisions.
Equality of access
The roll-out of contact tracing apps raises issues of equality of access.
It is notable, for instance, that the telecoms regulator Ofcom estimates that one in five adults doesn’t have access to a smartphone.
Others might find that the software on their device is not sufficiently up-to-date to run a tracing app.
This has prompted the Ethics Advisory Board to the NHSX app to warn that large numbers of people could be excluded. [28]
When considering the importance of consent to use of the app, it should therefore not be a condition of employment that a worker download and run a tracing app on a smartphone.
What are your rights if you have to self-isolate?
Even if the data processed by apps is managed well by government and employers, there is a risk that workers could be disadvantaged if they have to self-isolate.
Many workplaces will keep workers on full pay if they are unable to work from home. In these circumstances, it is important that all workers, including those on temporary contracts, are treated in the same way.
In other workplaces workers might have to rely on their employer’s sickness policy.
The bare legal minimums are set out in law.
As of 13 March 2020, employees and workers must receive any Statutory Sick Pay (SSP) due to them from their first day of self-isolation if it is because:
- they have coronavirus
- they have coronavirus symptoms, such as a high temperature or new continuous cough
- someone in their household has coronavirus symptoms
- they've been told to self-isolate by a doctor or NHS 111.
Previously there was a four-day wait but this waiting period has now been removed.
However, workers may be due more than SSP under the terms of their contract.
If someone has symptoms and lives alone, they must self-isolate for seven days.
If someone lives in a household and is the first to have symptoms, they must self-isolate for seven days. Everyone else in their household must self-isolate for 14 days.
If anyone else in the household starts displaying symptoms, the person with the new symptoms must self-isolate for seven days. This is regardless of where they are in the 14-day isolation period.
The expectation is that a worker tells their employer as soon as possible about the need to self-isolate.
Employees can self-certify for the first seven days off work. This means following their workplace process but not having to get a note from a doctor or NHS 111.
Those self-isolating due to coronavirus for more than seven days can get an online self-isolation note from the NHS website or phone app (if they are registered with a GP in England).
As contract tracing is rolled out to more workers, guidance must be updated to make it clear that those who are advised to self-isolate as a result of contact tracing must also be entitled to sick pay.
If these workers face delays in accessing tests or test results, which prolong their isolation period, they must continue to be paid for the entire period. Guidance on testing will also have to clearly set out how long workers will be expected to isolate after a positive test result, with SSP entitlement spanning the whole period.
But the system has huge gaps.
Currently those in work earning less than the Lower Earnings Limit (LEL) of £118 do not qualify for SSP or any financial support from their employer. In total nearly two million people miss out on sick pay. Women, those in insecure work, and younger and older workers are most likely to be excluded.
Meanwhile those who do qualify receive just £95.85, leaving them at risk of poverty.
For the sick pay system to be effective we need to bring in those on low earnings and raise the level of sick pay to the equivalent of a week’s pay at the Real Living Wage.
This is particularly important because, as contact tracing is rolled out, many workers (especially those who work outside the home) could find themselves required to self-isolate on multiple occasions. Workers and their families who receive just SSP, or even worse no sick pay, could suffer great hardship as a result.
