The Omicron variant has, in a matter of weeks, transformed the COVID-19 situation in the eastern states of Australia. In New South Wales and Victoria cases routinely exceed 20,000 per day, a figure that seemed inconceivable last year. Even though the variant is generally regarded by experts to be milder than its Delta predecessor, it nevertheless has posed enormous challenges for the community, including for employees and employers alike.
The virus itself, and the isolation rules imposed by governments to limit the spread of infection, have led to a significant percentage of the workforce not being able to attend work, undermining the health care system and creating significant supply chain problems for food and some other household staples. In response to this, some governments have truncated the isolation requirements in health orders, especially for workers employed in health care or other critical industries or functions, to remove impediments to those employees returning to work.
While employers understandably welcome the prospect of more employees being able to work, the variations to health orders in this way does create a dilemma - while the affected employees are not prohibited from returning to work under the terms of a government health order, their presence in the workplace may still give rise to increased risks under applicable work health and safety laws, such as the Work Health and Safety Act (NSW) 2011 (WHS Act).
One key obligation in the WHS Act is for employers to minimise the risk arising from Omicron in its workplace to the extent reasonably practicable. It is this obligation that has, correctly and appropriately, been relied upon by some employers to mandate COVID-19 vaccination for employees. While the terms of health orders might not prohibit an employee returning to work, their presence in the workplace still needs to be managed having regard to the duties of the employer under the WHS Act. (In NSW, the guidance that has been issued in relation to the applicable isolation exemption makes this clear).
It poses a dilemma for employers in critical industries or activities, balancing various factors: the critical need for additional staff, governments freeing employees to attend work, and the WHS obligations of the employer. This dilemma is not merely academic or theoretical - it is quickly becoming a flashpoint with some unions threatening to take action (including industrial action) in relation to the safety risks arising from close contacts returning to work pursuant to isolation exemptions in health orders.
If employees are returning to work pursuant to an isolation exemption in a health order, it is imperative those employers implement measures to mitigate the additional safety risk they may pose. Such measures include mandating of masks, mandatory vaccination (including, for those eligible, booster shots), physical distancing, limiting unnecessary workplace interaction, effective ventilation and robust cleaning regimes.
The health orders will generally also require employees given isolation exemptions to provide negative Rapid Antigen Tests (RA Tests). This is a measure employers more generally should look to adopt to manage the risks from Omicron in the workplace. It is, prima facie, a reasonably practicable step an employer can take. RA Tests can be a very effective tool for managing COVID-19 risks in various settings, including the workplace.
The current problem in relation to this, however, is the availability and cost of RA Tests. They are difficult (if not near impossible) to obtain and sometimes only available at an exorbitant cost. This is more than a mere inconvenience. It may have a significant impact on the legal analysis under the WHS Act. This is because the difficulty and expense of obtaining RA Tests might, of itself, take the use of RA Tests outside the scope of what is reasonably practicable for an employer to implement. It is a similar argument to the initial position by Safe Work Australia in relation to mandatory vaccination (that it might not be reasonably practicable), which was informed by the then limited vaccine availability.
The limited availability of RA Tests might also make it more difficult for an employer to argue that a requirement for employees to provide periodic negative test results is a reasonable direction. How can an employee comply with this requirement if the tests cannot be obtained, or only obtained at a cost that is prohibitively expensive? An employer seeking to direct the provision of negative RA Tests cannot turn a blind eye to these problems. Employers may need to endeavour (best as can be done in the present circumstances) to secure their own supply of RA Tests to provide to those employees subject to a direction to prove their current negative status.
As such, while the implementation of RA Tests is a compelling safety proposition in many workplace settings where there is elevated COVID-19 risk, the present supply issues with RA Tests are such that employers in such settings who don't use them may be able to cogently argue that it is not reasonably practicable to do so, and employees who are directed to provide RA Test results may be able to argue the direction is unreasonable. Hopefully the RA Test supply issues will be resolved quickly to avoid such unsatisfactory legal outcomes.
For further information please contact:
Michael Byrnes, Partner
Phone: +61 2 9233 5544
Email: mjb@swaab.com.au
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