We have asked workers to ensure they take a rapid antigen test before coming in to work if they are displaying any symptoms that could indicate they have COVID-19. We have one staff member who has refused. Is the worker within their rights to refuse?
Employers have obligations under work health and safety laws to provide a safe working environment for their workers. This includes ensuring the workplace is free (as far as reasonably practicable) from health and safety risks such as COVID-19.
Under the common law, an employer can issue a lawful and reasonable direction to an employee. Employees have a duty to comply with employer directions provided those directions are lawful and reasonable. A direction is lawful if it does not contravene a state, territory or Commonwealth law. However, whether or not it is reasonable is determined on a case-by-case basis. Reasonableness depends upon all the circumstances, including the nature of the employment.
A direction to take, and to provide the results of a COVID test, will be reasonable where you can show there is a lawful and genuine need for that information. This will depend on the circumstances surrounding each employee. It is more likely for this direction to be considered reasonable where the employee:
- is, or was, exhibiting symptoms of COVID-19;
- is exiting from self-isolation; or
- was a close-contact of someone infected with COVID-19.
In some jurisdictions or industries, there may also be a requirement under public health orders to isolate and/or get tested.
The purpose of the test and the obtaining of the result will be lawful where you use that information to protect the health and safety of those in the workplace. In addition, it would be reasonable for employers to make clear to employees that in line with government health advice, they should not be attending work if unwell, or if they have COVID-19 symptoms.
In circumstances where an employee is prevented from working because they have not complied with a government direction to be tested, an employer could place the employee on unpaid leave. This can only occur where the employee has used all their accrued paid leave entitlements or if they agree to take unpaid leave. In circumstances where they are unwell, they would be entitled to take personal leave.