No Silver Bullet for Combating COVID-19 Workplace Risks

Edge Legal

18 March 2022

While Rapid Antigen Tests (RATs) are likely to be essential in limiting workplace exposure to COVID-19, they are only one part of an employer’s overall strategy to combat risks to the workplace.

Safe Work Australia has recently reinforced that all reasonably practicable control measures must be considered and implemented by employers, if they are to meet their WHS obligations to eliminate or minimise the risk of COVID-19 to workers.

In practice, this means employers must look at their workplace and critically assess what can be done to reduce the risk to workers and other people at the workplace.

Control Measures

Workplace vaccination and RAT programs are likely to be the most effective control measures, especially where employees who have to work in closely with one another. However, the simpler methods, including:

  1.  social distancing and ventilation;

  2.  encouraging working from home;

  3.  shift staggering;

  4.  avoiding communal spaces; and

  5.  ensuring workers do not attend the work when unwell

are all required to be considered and implemented when reasonably practicable. As the burden of these control measures is relatively low, there is a high likelihood that most workplaces will be required to implement them.

RAT Programs

With the increased availability of RATs to the general public, employers might consider a workplace requirement to provide evidence of testing.

If so, it is essential that any policy be developed in consultation with the workforce, HSRs and relevant union representatives. If a consultation process is not correctly followed, there is a high likelihood that courts and tribunals will hold the policy to be unlawful.

In determining whether a workplace policy is necessary, employers may consider:

  1.  the vulnerability of their workforce and others at the workplace;

  2.  the likelihood that workers and others would be exposed to the virus;

  3.  the likelihood of widespread transmission in the workplace;

  4.  whether accurate and reliable RAT tests are available; and

  5.  anything else relevant to their risk assessment.  

If it is considered that RATs are a necessary control measure, employers should provide them to their workforce free of charge.

Key Message

While there continue to be positive steps forward in terms of testing and vaccine availability, employers must do all they reasonably can to minimise the risk that COVID-19 poses to their workforce. While this may likely include RAT and vaccination policies, all reasonably practicable control measures must also continue to be considered and implemented.

Edge Legal
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