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Is a RAT system required
Is a RAT system required? Employers have a heavily codified duty to provide a safe place of work. Occupational Health & Safety (OHS) and Work Health & Safety (WHS) laws impose obligations on employers to provide and maintain a working environment that is safe and free of risks to health, so far as is reasonably practicable. This includes a duty to workers or employees but also other people in the workplace, such as clients and members of the public. we have received numerous calls regarding is a RAT system required to discharge an employer’s health and safety obligations?
Appropriate control measures to eliminate or reduce these risks
Your employer is required to use appropriate control measures to eliminate or reduce these risks, consult with employees and health and safety representatives (HSRs) if any when doing things such as identifying risks and deciding how to control them, provide employees with the necessary information, instruction, training or supervision to enable them to do their jobs safely and provide employees with information about health and safety at the workplace.
What your employer should do to manage the risk of exposure to COVID-19 will depend on: the type of work you do, the level of risk associated with the task, what is reasonably practicable for the tasks and associated risks, including the availability of supplies and current pandemic orders, for example, pandemic orders from the Victorian Minister for Health and government advice, for example, guidance from the Department of Health.
With the number of COVID-19 cases and close contacts surging, employers are forced to consider and implement necessary policies to fulfil their health and safety obligations. Aside from implementing mandatory COVID-19 vaccination policies, should your employer implement regular rapid antigen testing (RATs)?
Prime Minister, Scott Morrison, has indicated that the 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.
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 the 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.
Employer will also need to engage in proper genuine consultation
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. Logistical considerations 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.
Rapid Antigen Testing, in combination with a mandatory vaccination program and other COVID safeguards, may form part of a robust system to assist an employer meet their work health and safety obligations and to minimise the risk of material business impacts caused by a COVID outbreak at their workplace. However, the use of RAT gives rise to number issues that employers need to take into consideration, including those that relate to the efficacy of the testing method, practicalities and cost of testing a large workforce and in relation to any workers that are unwilling to undergo this type of testing.
A limitation of RAT is that it is less sensitive than current PCR diagnostic testing procedures, with the result that it will likely miss a greater number of COVID-19 cases than standard testing procedures. RAT programs are imperfect, and shouldn’t take the place of other COVID safe workplace arrangements and contingency planning.
As part of the introduction of a RAT program at the workplace, it’s important that the employer consults with its employees and any representatives as required under WHS legislation and any applicable industrial instruments. It’s important that employers clearly document the arrangements, including the consequences for an employee who refuses to undertake a RAT. In almost all situations, it is likely to be lawful and reasonable for an employer to require a RAT as a condition of entry, but employers will need to consider an employee’s specific circumstances.
Employers will be responsible for procuring their own test kits (either directly or through a third party RAT service), in line with the TGA requirements, and will bear the costs of implementing RAT. 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 RAT prior to the start of their work day.
RATs is not feasible
If supplying RATs is not feasible for a particular employer, there are other control measures which can be imposed. Some examples of control measures that may be appropriate to manage the risk of exposure to COVID-19 include:
- physical distancing where possible
- changing work practices to reduce contact with other people
- allowing employees to work from another location, such as at home creating workforce bubbles (for example, by keeping groups of employees on the same shift at a single worksite) to minimize the spread of COVID-19 if there is an outbreak or community transmission
- increasing cleaning and disinfection in the workplace, especially in high-use areas
- avoiding the use of shared phones, desks, tools and equipment
- encouraging everyone in the workplace to practice good hygiene and providing things such as hand washing facilities and hand sanitizer
- ensuring employees do not attend work when unwell and having plans in place if an employee develops symptoms while at the workplace
- allowing extra break time to follow hygiene procedures
- keeping records of workers and visitors who come to the workplace
- where required, providing personal protective equipment (PPE), and information and training on why the PPE is required and how to use it safely.
Conclusion
I hope the article Is a RAT system required to discharge an employer’s health and safety obligations? was informative for you. We are A Whole New approach P/L we are the nations leading workplace advisors, we are at the fore front of commentary, research and protecting and informing employees of their rights and option. All Fair work Commission matters, including unfair dismissals, general protections and workplace investigations, our advice is free, confidential and prompt. Call 1300 766 700.
