Before a decision to offer tests
The employer must keep the employee organisation informed in situations where any tests are considered. The issue should also be dealt with in health and safety or work environment committees where these exist. In cases where the employer does not consult with the employee organisation or initiate negotiations on its own initiative, the PTK work environment group recommends that the local employee organisation initiate a negotiation with the support of Section 12 of the Co-determination Act (MBL).
Being able to determine whether employees have had a Covid-19 infection and developed antibodies is not usually relevant to work environment activity and does not alter the employer's obligation to conduct the risk assessments and make the adjustments required to avoid exposing workers to infection. Test results cannot with 100% certainty determine whether a person has developed antibodies. It is also not clear whether antibodies provide complete immunity to future Covid-19 infections. When considering offering tests, occupational health care should also be consulted for recommendations.
Based on the regulations regarding medical checks in working life, health checks may be required in some cases in order for an employee to obtain a fitness for work certificate needed to perform certain tasks. The work tasks that require a fitness for work certificate are regulated specifically and not applicable to tests for Covid-19. Any offer of antibody tests should therefore only be regarded as a benefit for the employees. If the employer offers to pay for tests that are available through the public health service, these may be subject to taxation as a salary benefit.
The PTK work environment group recommends that tests are carried out by occupational health care, or alternatively by expertise used by occupational health care, to ensure that it is conducted independently and that tests and results are handled correctly. If occupational health care is not used, the independence of the tester, the quality of the tests and the handling of the results in accordance with GDPR must be ensured.
Depending on the reason for the tests, a target group should be identified. If the purpose is to investigate whether a particular department has been affected by Covid-19, the offer can be limited to staff in that department. Since Covid-19 testing should primarily be regarded as a benefit offered to employees rather than as part of the employer's efforts to prevent the spread of infection among employees, all employees at the workplace should also be included.
When communicating the offer, the purpose, any benefit tax payable, what happens with the results, the voluntary nature of undergoing the tests, integrity issues linked to the test results and other matters should be explained clearly.
The tester may only notify the employee of the result. The employee may then decide on any further communication. Communication of test results from the employee to the employer must be voluntary, meaning that the decision may not have any consequences for the employee.
For employers, it is important to know that test results are health data and thus classified as sensitive personal information according to data protection regulations (GDPR).
Prior to a decision on the offer of testing, it should be explained, for the sake of clarity, that the test results will not have any consequences for the employer's responsibility to prevent employees from being exposed to infection and that participation may not affect the relationship between individual employees and the employer.