New draft bill allows companies to test employees for coronavirus

The new draft bill significantly expands companies’ possibilities to require employees to be tested for coronavirus. Under current rules, the possibility for companies to receive information about an employee’s health are very limited. Consequently, the requirements for testing under the current rules presume, among other things, that the information is of significant importance for the employees’ ability to work and that the working conditions specifically supports it, or that the information is justified with reference to significant operational reasons. In both cases, however, companies must also meet several additional requirements before testing can be carried out.

If the draft bill is passed with its current wording, companies may require that one or more employees are tested for coronavirus as soon as possible. Companies will at the same time be allowed to receive the test result as soon as the employee receives the result – either electronically or in the form of a solemn declaration. The draft bill will only provide a temporary access to require testing for coronavirus until 31 December 2021.

When and how can companies test for coronavirus?

Before companies consider issuing requirements for testing, it is important to be aware that the draft bill contains several requirements and procedures.

First of all, companies can only require employees to be tested for coronavirus if it is objectively justified in order to limit the spread of coronavirus, including working environment considerations or significant operational considerations. Accordingly, testing could for example be considered as objectively justified if the reason is based on requirements from customers of the company’s products that special precautions must have been taken against coronavirus. Oppositely, testing would not necessarily be considered as objectively justified if the employee is not in contact with humans or animals during the working day.

Besides for testing having to be objectively justified, companies must also satisfy some additional requirements, including:

• Written information that there is a requirement for testing for coronavirus, the reason for this, test options and how quickly the test result is requested
  
  
• As far as possible ensure that testing is performed during the affected employees’ working hours
  
  
• Ensure that testing is carried out in a safe manner, regardless of whether the test is carried out at the workplace or not. In any case, testing must be carried out by a qualified physician

The new rules provide for an exceptional access to test for coronavirus. This means that the draft bill will not enable companies to require testing for antibodies to coronavirus or other diseases and health information.

IUNO’s opinion

The new draft bill intends to meet the continued increasing demand from many companies to be able to test employees for coronavirus – for example, to counteract lockdown as a result of outbreaks or to meet requirements from other countries for necessary measures in the workplace.

IUNO recommends that companies read through the new requirements thoroughly before requiring testing of employees pursuant to the forthcoming rules. This also applies before the company considers any potential sanctions against employees who refuse to undergo testing. At the same time, companies must of course be aware that the general data protection rules continue to apply, and that any processing activity must take place on a legal basis and in accordance with the general processing principles.

The draft bill is currently being processed urgently. We follow developments closely and return when there is news.

[L 102 Draft bill on employers’ access to require employees to undergo testing for covid-19 etc.]