Despite the relaxation of vaccination mandates and quarantine directives across the country, the COVID-19 pandemic continues to pose a major public health risk – and cause challenges in the workplace.
With case numbers remaining high, it’s unsurprising that some employers and workers remain concerned about being exposed to the virus in the workplace.
But what happens if an employee is exhibiting COVID symptoms and refuses to be tested?
Can employer’s direct workers to take a COVID test?
While vaccination and testing mandates have proven to be a sensitive issue for some, employers are nevertheless obligated under work health and safety laws to provide a safe working environment for their employees.
Maintaining a COVID-free workplace arguably falls under this responsibility.
Furthermore, workers also have their own ‘duty of care’ obligations, in regard to their own health and safety – and that of others.
So, if an employee is exhibiting symptoms of COVID, can employers direct them the take a test?
Well, this is a little tricky and can depend on several factors, including current public health orders.
However, under the common law, an employer can issue a lawful and reasonable direction to an employee – which employees have a duty to comply with. A direction is considered lawful if it doesn’t contravene any state, territory or Commonwealth laws.
When is a testing request ‘reasonable’?
A direction for an employee to take, and to provide the results of a COVID test, should be considered as ‘reasonable’ if it can be demonstrated that the direction is lawful and that there is a genuine need for the information.
Of course, this will depend on the specific circumstances of each case, and it is more likely for this direction to be considered reasonable if certain criteria are met.
For example, in cases where the employee is exhibiting symptoms of COVID-19, or if they have been identified as a close-contact of someone who has tested positive for COVID-19.
What if an employee refuses?
Well, this is where things can potentially get tricky – particularly with the changing nature of government directives and mandates concerning COVID-19.
Despite being what most would consider a reasonable request, there may still be some employees who refuse to comply with a request to be tested.
Discussing the concerns of the employee and explaining the reasons for the testing request may lead to a positive resolution. Some individuals, however, might remain steadfast in their refusal.
If this type of situation arises, it may be necessary to act in order to maintain a safe working environment for other employees – such as temporarily suspending the employee in question or directing them to work from home until the situation is resolved.
In such cases, the smart option would be to obtain legal advice on the best way to proceed. This can help to ensure that you are not overstepping or infringing on an employee’s rights – and avoid any resulting legal issues.
Akyra’s key takeaways
- If an employee is exhibiting symptoms of COVID-19, it is reasonable to request that they be tested – and provide the results of this test
- If an employee has concerns or hesitations about being tested, discuss the situation with them – you may be able to resolve the situation in a positive way
- In some cases, employees may still refuse to comply with this type of request – despite the risks posed to themselves and others
- If the situation appears intractable and disciplinary action (such as suspension) is considered, the safe bet is to obtain legal advice first
NEED MORE INFORMATION?
Akyra can help your business to assist and support all your questions and concerns related to COVID-19 in the workplace. Please contact Akyra on 07 3204 8830 or book a free 30-minute consultation for an obligation-free conversation.
Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not intended to be legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.
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https://www.employmentlawonline.com.au/can-my-employer-require-me-to-take-a-covid-19-test/, https://www.legalaid.nsw.gov.au/publications/factsheets-and-resources/covid-19/covid-19-employment, https://www.wallaceweir.com.au/news/obialyl7zrjc4r071fudp2nz06i2ac, https://www.qld.gov.au/health/conditions/health-alerts/coronavirus-covid-19/stay-informed/exposed-to-covid/covid-testing-in-queensland/when-to-get-tested, https://coronavirus.fairwork.gov.au/coronavirus-and-australian-workplace-laws/covid-19-vaccinations-and-the-workplace/covid-19-testing-and-the-workplace/rapid-antigen-testing#requiring-rat