As many businesses start to reopen their doors, some employers might want their staff to do a rapid antigen test. Is it lawful and reasonable to impose this requirement?

Under a cloud of Omicron infections, Victoria and NSW governments have strongly recommended school staff and students do a rapid antigen test (RAT) twice a week for the first four weeks of term one this year.

Now that a positive RAT result is considered sufficient evidence to confirm a case of COVID-19, other industries may also choose to recommend the use of RATs before employees enter the workplace as an additional safety measure to curb the spread of the virus.

Annamarie Rooding, Director and Principal of Principled Workplace Consulting, says the schools’ approach is a “really useful yardstick” for other workplaces. This is regardless of whether employers go down a similar route of recommending RATs, or if they introduce testing as a requirement for staff.

“I think testing once or twice weekly, if you can otherwise demonstrate certain factors of reasonableness [which are outlined below], would be completely appropriate,” she says.

Of course, tests can be hard to come by, and they don’t come cheap, either.

For these reasons, Rooding says that if an employer wants to impose regular testing as a working condition, it’s the employer’s responsibility to make the tests available to staff – and paying for them should virtually be a “no brainer”.

“I’m not sure it would be reasonable to require employees to get their own tests on a regular basis,” she says.

“Employers might also need to eliminate or minimise the risks of spreading COVID-19 by providing a supervised area for people to conduct the test at work, if they haven’t done one already at home.”

When is it lawful and reasonable to require Rapid Antigen Testing?

The consideration about whether employers can impose rapid antigen testing requirements bears similarity to the question about whether vaccination mandates are lawful and reasonable, says Rooding.

“Whenever we’re looking at whether something is lawful and reasonable, context is king.”

Key in this consideration is the employer’s obligation to provide a safe workplace for every employee.

If, for instance, employees work in close proximity to other employees in a small environment or with vulnerable members of the public, then the requirement for rapid antigen testing in the workplace would likely be reasonable, says Rooding.

Whether or not the decision to mandate RATs is reasonable would depend on specific factors including:

• Has the employer consulted its workforce?
  
  “Consultation is really important – not just because you need to hear employees’ feedback, but also because you need to explain why you think, in your particular circumstances, it is a reasonable requirement,” says Rooding. 

  Genuine consultation is required for any significant workplace change. Skipping this step could land an employer in trouble, as the recent BHP mandatory vaccination case highlights.“It’s also important in terms of getting people on side.“If you really want to win the hearts and minds of your people, explain why you think this is a reasonable measure to implement. People are more likely to accept the measure if they understand why you are imposing these requirements.”[For more information, read HRM’s article on an employer’s consultation obligations.]

• What are the current day-to-day working arrangements of your workforce?
  
  This question entails factors such as how often employees are attending the workplace, and how many people are in the workplace at any one time. 

  “If employees are working with few staff around, it may not be reasonable to require them to do RATs.It also may not be reasonable to require people to be tested if they’re only coming into the office for one or two days a week and it’s a largely vacant office, compared with the other end of the spectrum where you have some employees who are essential workers, so they have to be there working in close proximity to one another.”

• Have you considered the vulnerability of other employees, and the level of interaction with customers and clients, that necessitates making rapid antigen testing mandatory?“You may have people who are immunocompromised or have a medical exemption from vaccination in your workplace, so you need to make decisions to protect those employees,” says Rooding.Businesses that conduct critical operations, such as companies that run a distribution centre with essential supplies, healthcare, or employers that need a certain number of people on deck at any given time, may also have reason to mandate rapid antigen testing, says Rooding.

  “If you need to have a certain number of people present to conduct specific requirements of your business, that might be a circumstance which increases the prospects that compulsory rapid antigen testing is reasonable.”

Rapid antigen test but no vaccination?

If an employee agrees to perform a rapid antigen test everyday, could they be exempt from getting vaccinated?

Rooding says this is certainly a possibility.

“Let’s say you have an office environment where the bulk of your workforce is double or triple vaccinated. If you have someone who doesn’t want to be vaccinated but in all other respects is asymptomatic and is more than happy to share the results of their rapid antigen test every morning before work, then I think it does make it incredibly difficult to argue that mandatory vaccination requirements for that person are reasonable.”

If the employee has a valid medical or religious reason for refusing vaccination, the company would likely be expected to provide the tests, says Rooding.

However, if the employee refuses to get vaccinated and that’s not based on a protected ground of discrimination, but wants to have regular testing as their option to be able to return to work, then Rooding says the employee will probably need to fund the tests.

“In the end, all of these things are matters of judgment. It depends on the risk profile of the environment you are in.”

In some workforces, agreeing to a RAT everyday without being vaccinated might not be feasible.

“If you’re a critical care nurse, hospitals would still require you to be vaccinated because the risk profile is so different to office-based workers,” says Rooding.

Collecting rapid antigen test results

Some employees may express privacy concerns about providing a rapid antigen test result to their employer.

When considering privacy, there are three key points to consider, says Rooding:

• Who needs to access the rapid antigen results, and where will the results be stored?
  
  “I would be storing this sort of information separately to your ordinary employment records that might be accessed by anyone in HR or payroll. Have a very limited need-to-know-basis approach [for accessing this information].”
• Could you anonymise the information?
  
  If an employer is maintaining a database with daily test results, it’s worth considering whether the information could be stored according to usernames or an allocated number instead of under employees’ real names, says Rooding.
• How long do you need to keep the information on file?
  
  “If you only need to know that the person has tested negative for that week, or on a particular day, once you have that and check it off, you could discard that information at the end of that week.”

Employees can also rest assured that their company is not collecting any biometric data by requiring a rapid antigen test. This is in contrast to cases such as Jeremy Lee v Superior Wood Pty Ltd in 2019, where the Fair Work Commission ultimately found in favour of an employee who claimed he was unfairly dismissed after refusing to provide his employer with a fingerprint sample.

Providing a rapid antigen test merely requires the employer to cite the result, and this would be deemed sufficient evidence, says Rooding.

“They don’t need to obtain any further data about the person. I think there is quite a difference between citing a negative test result and retaining biometric information about an individual which, if disclosed, could lead to significant privacy concerns and harm, including identity theft,” says Rooding.

Informing your workforce

In terms of communicating the decision to mandate rapid antigen testing at work, Rooding says exactly how this is done will vary from workforce to workforce, but there are valuable lessons that can be learnt from the schools’ approaches.  

“Government schools sent detailed information to families about collecting the tests, how to use them, and what to do if their child gets a positive or negative result,” says Rooding.

“It has been well-communicated as part of the return-to-schools protocol. I think employers could take some learnings from that, particularly those companies that are in the transition period going from everyone working from home to moving back to the workplace.”

She says the communication should encompass all the measures that a company plans to take – such as social distancing and the availability of hand sanitiser stations – to minimise risk and maximise everyone’s ability to work together safely.

“Add that you have staff available to answer questions on how to conduct them. I don’t think it needs to be any more scientific than a really well-crafted communication explaining why you’re doing it, and what the testing requirements are.”

This could be communicated by adding information to an existing COVID-19 workplace safety policy, or disseminating details about the decision through work communication channels such as email or Slack.

“If you can provide that information in a non-alarmist way, and in plain English, I think it does assist you in minimising the number of people who will be upset or aggrieved by the company’s decision,” says Rooding.

Making rapid antigen testing mandatory in the workplace raises many legal questions. Make sure to get across your employment law obligations with AHRI’s short course, Introduction to HR Law. Book in for the next session on 22 March.