The Omi­cron Work­place Safe­ty Dilemma

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.