The COVID-19 pandemic has created an unprecedented situation for everyone. As a small business it is understandable you may have concerns about how to continue to meet your WHS duties at this time. There are a number of practical steps you can take to manage the risk of exposure to COVID-19 at your workplace and meet your legal obligations.
Here are some ideas to help you get started thinking about what you can reasonably do to keep people safe at your workplace.
For more WHS information and resources for small business, go to the COVID-19 Small business hub.
This page provides information about your obligations under the model WHS laws and how these relate to COVID-19 rapid antigen testing. This information will assist you to assess whether a COVID-19 rapid antigen testing program (RAT program) for your workers, including contractors and labour-hire, is a reasonably practicable control measure to manage the risks of COVID-19 at work.
You will need to review this assessment from time to time.
Further, a RAT program is only one control measure for COVID-19 that may be required under the model Work Health and Safety (WHS) laws for your workplace. You must continue to implement all other reasonably practicable control measures in your workplace such as encouraging vaccination, physical distancing and good hygiene to minimise the risks from COVID-19. Further information on other control measures is provided on this page.
In addition to your obligations under the model WHS laws, you must also comply with any public health orders or directions made by state and territory governments that apply to you and your workplace. This guidance does not affect any obligations you may have regarding rapid antigen testing that apply under public health orders and directions.
This guidance does not change, remove or reduce any existing rights or obligations under the model WHS laws.
As Victoria has not adopted the model WHS laws, this guidance is not applicable to Victoria. Up-to-date guidance applicable to responding to COVID-19 in Victorian workplaces can be found on the WorkSafe Victoria website.
Employers have a duty under the model Work Health and Safety (WHS) laws to eliminate, or if that is not reasonably practicable, minimise the risks of COVID-19 at work so far as is reasonably practicable. Employers also have a duty to consult workers (including contractors and labour-hire personnel) and workers’ health and safety representatives, regarding COVID-19 risks and how these risks are to be managed. This includes the introduction of WHS or other workplace policies relating to COVID-19 rapid antigen testing (RAT) of workers and RAT programs.
A RAT program may assist in identifying people who are infectious with COVID-19 and to minimise the risks of COVID 19 at the workplace, however, it is not the only relevant control measure. Even if you determine that a RAT program is reasonably practicable for your workplace, it should not be relied on in isolation. To meet your duties under the model WHS laws and minimise the risks of COVID-19 in your workplace, you must continue to apply all reasonably practicable COVID-19 control measures, such as:
- encouraging or ensuring vaccination, where applicable,
- ensuring your workers do not come to work when unwell,
- ensuring your workers do not come to work if they have tested positive for COVID-19 unless they have been released from isolation by the relevant public health authority,
- ensuring physical distancing in the workplace and adhering to density limits (check occupancy limits for the type of building and building standards). For example:
- supporting workers to work from home or relocating work tasks to different areas of the workplace or off-site,
- staggering your workers’ start, finish and break times,
- reducing the number of situations where workers come into close contact, for example in lunchrooms and other shared spaces,
- improving air quality,
- practising good hygiene,
- increasing cleaning and maintenance,
- wearing masks correctly.
How do I determine if a rapid antigen testing program is a reasonably practicable control measure for my workers?
To minimise the risks of COVID-19 in the workplace, you must:
- undertake a risk assessment for your business
- consider the effectiveness of available control measures and how they will help manage the risks of COVID-19, including rapid antigen testing
- consult with workers and their health and safety representatives about COVID-19 and relevant control measures, including rapid antigen testing, including providing your workers with relevant information and materials about testing to assist their understanding of the issues. (More information on your consultation obligations is available on the consultation page), and
- determine what control measures are reasonably practicable for you to implement in your workplace (more information on the meaning of reasonably practicable is available on the risk assessment page).
When determining whether a control measure is reasonably practicable under the model WHS laws, consideration must be given to several factors:
- likelihood of risk occurring
- degree of harm that might result
- what the person conducting the business should reasonably know about the risks and how to minimise them
- availability of and suitability of ways to minimise risk, and
- after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the costs associated, including whether the cost of implementing a control measure is grossly disproportionate to the risk.
Whether a particular control measure is reasonably practicable, such as a RAT program for your workplace, will depend on the circumstances of your particular workplace and your workers at the time you undertake your risk assessment. Access to a reliable supply of rapid antigen tests approved by the Therapeutic Goods Administration (TGA) will be a relevant consideration when determining if a RAT program is currently a reasonably practicable control measure for your workplace.
You should consider how a rapid antigen testing program might operate in your risk assessment, including whether the testing would occur at the workplace or outside of the workplace.
If you conclude (following a risk assessment undertaken in consultation with your workers and their health and safety representatives) that implementing a rapid antigen testing program is necessary to minimise the risks of COVID-19 at your workplace (and would be reasonably practicable), you again need to consult with your workers and their health and safety representatives about the proposed testing program. You will need to continually review your risk assessment and control measures including when access to and availability of rapid antigen tests changes.
More information on conducting a risk assessment is available on the risk assessment page. You should also note that in some jurisdictions, workplaces are required to develop
COVID-19 safety plans under public health directions and orders. Information on COVID-19 safety plans is available from government agencies in your jurisdiction.
Relevant matters for a RAT program as a control measure for your workplace
When determining whether a RAT program is a reasonably practicable control measure, you should take into account:
- Are rapid antigen tests available? If there are no limitations on availability or supply, this may mean it is more likely to be reasonably practicable.
- How likely is it that your workers will be exposed to the COVID-19 virus? This includes, for front line workers, considering the extent of community transmission of COVID-19 where your workplace is located and the number of people they will be in contact with which will increase likelihood of your workers contracting the virus. If community transmission is high, the risk to those workers is higher than for places of low community transmission. This may mean implementing a RAT program is more likely to be reasonably practicable.
- Do your workers work with people who would be vulnerable to severe disease if they contract COVID-19? If yes, this may mean you should implement control measures to reduce the likelihood of your workers exposing vulnerable persons to infection, such as by using a RAT program.
- What is the likelihood that COVID-19 could spread in the workplace? For example, some work tasks may require your workers to work in close proximity to each other, to your customers or members of the public. If it is high, this may mean that you should implement control measures to reduce the likelihood of those workers either catching the virus from others, or transmitting the virus to others, such as by using a RAT program. For further information on testing in communities with high prevalence of COVID-19 see the Australian Health Protection Principal Committee statement on rapid antigen testing for current high community prevalence environment.
- What RAT tests will you use? How accurate are they in detecting COVID-19 in asymptomatic workers? How likely are false positive results in workers without COVID-19? Currently, there is variability in the performance of different RATs. The Public Health Laboratory Network and Communicable Diseases Network Australia joint statement on SARS-CoV-2 rapid antigen tests provides more information on test performance and limitations.
- Would a requirement to be tested at the workplace be unlawful in the circumstances? If yes, the model WHS laws would not require you to implement a RAT program.
- The design of a testing program, which may include:
- who will be tested,
- how often will workers be tested,
- where testing will occur (e.g. at home or at the workplace), and
- processes in place to manage a positive result.
What rapid antigen test kits can be used?
Only rapid antigen tests that are approved by the TGA are permitted for use in Australia. Both ‘point-of-care’ (for use under medical practitioner, health practitioner or paramedic supervision) and ‘self-tests’ (for use without supervision) have been approved by the TGA.
A list of kits approved for self-testing and instructions on how to use the kits is available here. The TGA has also published a fact sheet on self-testing.
The TGA has also developed guidance for businesses considering implementing rapid antigen point-of-care testing in their workplace.
You should follow the manufacturer’s instructions for the specific test kit, record the results and follow state and territory public health orders or directions in relation to reporting results.
If a worker tests positive, you must respect their privacy and not reveal their personal details to others. For more information on privacy, go to the Office of the Australian Information Commissioner website.
The Public Health Laboratory Network and Communicable Diseases Network Australia joint statement on SARS-CoV-2 rapid antigen tests provides general public health advice on implementing a RAT program and on principles for use and potential limitations of a RAT program.
Can I require my workers to purchase their own rapid antigen tests?
No. As an employer you have a duty under the model WHS laws to eliminate, or if that is not reasonably practicable, minimise the risks of COVID-19 at work so far as is reasonably practicable.
If you determine (after consultation) that rapid antigen testing of your workforce is required, then you must provide the TGA-approved tests at no cost to workers.
Can I require customers and visitors to prove they have been tested for COVID-19 before entering my workplace?
Customers and visitors at the workplace can transmit the COVID-19 virus to your workers and other customers, and controls should be put in place to protect both workers and customers.
It is unlikely that it would be reasonably practicable under the WHS laws for you to require customers or visitors to be tested or to ask them for proof of a negative test as a condition of entry. However, state and territory public health orders or directions may require you to check for confirmation of a negative test as a condition of entry for example in high-risk settings, such as aged care.
If you want customers and visitors to be tested as a condition of entry to your premises and this is not covered by a public health order or direction, you should seek legal advice before you take any action as there may be privacy and discrimination issues that apply.
For more information on privacy, go to the Office of the Australian Information Commissioner website. For more information on anti-discrimination laws, go to the Australian Human Rights Commission website.
Additional resources
- Coronavirus (COVID-19) – Testing Framework for COVID-19 in Australia
- Public Health Laboratory Network and Communicable Diseases Network of Australia Joint statement on SARS-CoV-2 rapid antigen tests
- Public Health Laboratory Network guidance on laboratory testing for SARS-CoV-2 (the virus that causes COVID-19)
- Information on COVID-19 and Australian workplace laws is available from the Fair Work Ombudsman website: Fair Work Ombudsman - Coronavirus and Australian workplace laws
