Safe Work Australia (SWA) and the Fair Work Ombudsman (FWO) have published advice for employers on WHS and industrial relations issues concerning rapid antigen testing.

Amongst other relevant issues, the SWA advice highlights the obligations that employers have under WHS laws and how these relate to rapid antigen testing. Employers have a duty under WHS laws to eliminate, or if that is not reasonably practicable, to minimise the risksof COVID-19 at work, so far as is reasonably practicable. When an employer is determining whether a rapid antigen testing program is a reasonably practicable control measure for its workers, SWA advises that employers must:

• Undertake a risk assessment for the business;
• Consider the effectiveness of available control measures and how they will help manage the risks of COVID-19, including rapid antigen testing;
• Consult with workers and their health and safety representatives about COVID-19 and relevant control measures; and
• Determine what control measures are reasonably practicable to implement.

The FWO advice states that employers can require their employees to undertake rapid antigen testing where:

• A specific law (such as a state or territory public health order) requires it;
• The requirement is permitted by an enterprise agreement, other registered agreement or employment contract; or
• It would be lawful and reasonable for an employer to give their employees a direction to undertake rapid antigen testing.

The FWO advice also deals with an employer’s consultation obligations and various matters relating to payments. The FWO advises that:

• Where an employer determines that rapid antigen testing in the workplace is necessary to comply with their obligations under a WHS law, the employer must provide the tests at no cost to employees; and
• If an employee is required to take a rapid antigen test for COVID-19 by their employer:
  • before attending the workplace – the employee will generally not be entitled to be paid for the time spent taking the test; and
  • while at the workplace – the employee will generally be entitled to be paid for time spent taking the test.

If you would like more information about rapid antigen testing or COVID-19 in the workplace, please contact Ai Group’s Workplace Advice Service on 1300 55 66 77. Alternatively, if you would like advice or assistance regarding implementation of rapid antigen testing in the workplace, we would be happy to assist from any of our Ai Group Workplace offices in Sydney, Newcastle, Melbourne, Wollongong, Brisbane, Adelaide or Perth