2 February 2022

Can an employer make you take a rapid test before you return to work?

| Karyn Starmer
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Rapid antigen test

Whether an employer can request a rapid antigen test is likely to come down to individual circumstances. Photo: Annie Spratt.

As cases of the Omicron variant of COVID-19 explode across the country, employers and employees are faced with the dilemma of whether to request or provide rapid antigen testing results as a precaution rather than as a response to a public health order.

ACT Health currently requires anyone at high or moderate risk of getting COVID-19 from exposure to a known case to test and isolate after a PCR or rapid antigen test (RAT). But what if the test is just to make sure someone is COVID free?

Snedden Hall & Gallop director and employment law specialist Emily Shoemark said the situations in which an employer can request a rapid antigen test are likely to come down to individual circumstances, but there are some key considerations to cover most situations.

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Emily said the first thing is to consider what is lawful and reasonable.

“An employer must take into consideration any public health directions and recommendations and must also take reasonable steps to provide a safe workplace,” Emily said.

The steps to provide a safe workplace include having a COVID-safe plan, implementing social distancing measures, requiring the wearing of masks when social distancing is not possible, as well as good standards of hygiene and good ventilation.

“A safe workplace is a balancing act between the employer and the employee. Each must play their part in keeping everyone safe,” Emily said.

“The next thing to consider is, if an employer is requesting an employee take a RAT, what is the reason? Is the business going to suffer if an employee comes to work COVID-19 positive?

“Employees retain their right to choose what happens to their body or refuse medical treatment, but with testing, there is a grey area where this lands.”

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Emily said if a job is in a low risk, non-public-facing setting, it is hard for an employer’s request for a RAT to be reasonable, particularly if the tests are hard to get. But if the business is at risk of a catastrophic impact if staff get sick or cannot operate due to a lack of staff, a RAT request becomes more reasonable.

Emily cited the example of an employer in a hospitality business requesting and providing a RAT in order to prevent other staff from getting sick and ensure the business has enough staff to open its doors.

“It is certainly a grey area, but if the employer provides and pays for a test to keep the business running and preserve employees’ shifts or even their jobs if a business is forced to close, that could be seen as a reasonable request. The test of what is reasonable will likely be based on day-to-day circumstances of any particular business.”

Safe Work Australia provides information for employers, small businesses and workers on the COVID-19 vaccines and how to manage risks from COVID-19 in the workplace.

“We are all in control of the safety of our workplace. Based on the Safe Work Australia recommendations, an employer must take reasonable steps to provide a safe workplace, and if an employee has any symptoms, they should not come to work. We all share the responsibility to keep everyone safe.”

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The RAT test is unlikely to give a positive reading unless you have strong symptoms, so if you are feeling sick and have strong symptoms you can check if you have covid or some other illness, either way you should not be at work. But if you have no symptoms the test will almost certainly be negative, but you may still be infectious. Having a RAT test isn’t really all that useful.

I heard a guy on the radio today who was in the construction industry (not in Canberra). He has 12 employees and there is a requirement to be RAT tested every 3 days.
He says it’s costing him a lot of money every week for his company to comply with health regulations and he’s not happy.
He understands why testing is required, but he said it’s a public health issue, it’s not an expensive that his business should need to meet.

Does he also think it’s unfair to have to provide his employees with construction safety gear and PPE?

Surely the government should provide them.

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