On 5 January 2022, the Prime Minister reported that the National Cabinet had agreed that the Commonwealth Attorney General will convene a meeting of relevant ministers from all jurisdictions to remove any potential obligation to impose testing requirements in workplaces on employees.
Implementation of a system of rapid antigen testing (RAT) for workers attending a workplace is one of several measures that will control the health and safety risk posed by COVID-19 infection. It will also assist to minimise the risk of material business impacts caused by a COVID-19 outbreak in the organisation.
Is a RAT system required to discharge your health and safety duties?
Whether adopting a RAT system is actually required by work health and safety legislation depends on whether it is a reasonably practicable measure. In this sense, consideration of adoption of a RAT system gives rise to the same issues as implementing other risk control measures, such as mandatory vaccination. These considerations include:
- whether a RAT system is justified by the degree of risk, e.g. in an area where community transmission is significant;
- the gravity of the potential harm, whether that be physical (e.g. aged care) or economic (e.g. logistics);
- whether it is suitable and available for the workplace setting; and
- whether it will be effective, practical and not unduly costly, having regard to the size of the workforce and their willingness to undergo RATs.
Legal risks and requirements
Like mandatory vaccination, issues will arise as to the extent to which the employer can direct employees to submit to a RAT regime. Before implementing such a system, the employer will need to conduct a thorough assessment of the risk of COVID-19 infection and the merits of the measure to control the risk. The employer will also need to engage in proper genuine consultation.
If these steps are taken, it will be likely to be lawful and reasonable for an employer to require RAT as a condition of entry.
In addition, if a government or public health direction requires an employer to implement RAT in the workplace, the employer can direct its employee to comply with the law.
RAT will present potential logistical challenges for larger organisations. Given the need for workers to be tested before starting work, larger organisations may need to consider the logistics and time requirements for significant numbers of employees to complete a test prior to the start of their workday.
Employers will be responsible for procuring their own test kits (either directly or through a third-party RAT service), in line with the requirements of the Therapeutic Goods Administration (TGA), and will bear the costs of implementing RAT.
Guidance for implementing a RAT system
Health authorities have published guidance on their websites. For example, NSW Health provides a Framework for the Provision of Rapid Antigen Screening in Clinical and Non-Clinical Settings to guide workplaces and schools conducting RATs onsite. The guideline provides: “Where a person declines a rapid antigen test at their place of work or school, then it is recommended that they do not enter the site until they can provide evidence of a COVID-19 PCR test in the past 72 hours.”
The TGA has also published guidance, including a checklist to help businesses understand the key considerations for the safe implementation of COVID-19 rapid antigen point-of-care testing in their workplace.