HR highlight: NSW Surveillance Testing? What does it mean for employers?

By Australasian Convenience and Petroleum Marketers Association Executive Manager Employment and Training Elisha Radwanowski.

As queues for Surveillance Testing in Fairfield snake for hours, and the Public Health Orders and the press comments and Facebook posts deliver conflicting information about start times and requirements, questions of how this applies, the impact of staff refusing to get tested, the status of uber drivers and many more are coming thick and fast. This week’s HR Highlight explores not just the Covid practicalities of this new situation, but also the employment implications.

As the delta variant of Covid-19 resets our understanding of what an outbreak is, governments and health are working together to explore new options for addressing this new reality. NSW has rolled out for the first time at a broad community level the new tool of Surveillance Testing. Used narrowly in some workplaces and health settings the requirements announced this week for Surveillance Testing applying to all persons leaving the Fairfield Local Government Area (or indeed leaving Greater Sydney) to a flurry of activity, questions and commentary.

This is a highly charged time and the authorities, businesses and people are doing their best to navigate this new situation and new health response. The information continues to be patchy and conflicting and ACAPMA is working through it with the authorities to deliver you the most up to date information possible as soon as possible.

As always, if you have questions or situations that develop onsite, please reach out via communications@acapma.com.au and we will assist you in navigating this.

Q: The Public Health Order says that right now (from 00:01 14/7/2021) I can’t let someone into work if they live in Fairfield LGA and they cannot show me that they have had a test in the last 72h, but I have also seen press conferences and official Facebook posts from NSW Health that say the requirement to show a test doesn’t start until the end of day on 16/7/2021… which one applies?
A:  The Public Health Order is the law and it is what technically applied, but like most laws there is an accompanying enforcement strategy that is put into place from the responsible minister and the police, in this case the Premier, Minister Hazzard and the Police have confirmed that the enforcement strategy for this law will clearly take into account the fact that the Orders were not published until late in the afternoon yesterday and came into effect at midnight this morning, and that testing queues are hours long at this point in the Fairfield LGA… so they have announced that they will not be enforcing the test provision requirement of the Public Health Order until 00:01 17/7/2021.

This gives affected people time to get a test while still delivering their essential work.

Q:  The Public Health Order says that the employee just needs to show me evidence of a test, not that it needs to be a negative…does that mean that the employee can still work while positive?
A:  It’s true that the Public Health Order states that the employee needs to show evidence of a recent test, but practical application includes the fact that there are three outcomes of a test;

  1. A negative result which allows the employee to go about their life and can be shown as evidence of test until the next is required.
  2. An inconclusive result, which the other Public Health Orders will kick in and require the employee to retest and isolate until they receive a negative result.
  3. A positive result, which the other Public Health Orders will kick in and require the employee to isolate and follow other NSW Health instructions.

But this wording in the Public Health Order does not mean permission for the employee to be at work while positive or inconclusive.

Q:  So do I need to see evidence of a test being done or evidence of a negative result?
A:  The short answer is both… for the first few days evidence of doing a test is what is needed in terms of evidence, but after a few days the business should also be seeking evidence of a negative test result because anything other than a negative result necessitates an immediate response at the workplace.

As an example;

  • Joe lives in Fairfield but works at a service station in Liverpool.
  • Joe is an affected person for the Public Health Order.
  • Joe went and got a COVID test on 13/7/2021 at 22:00.
  • Joe received a slip of paper (or a text message) from the testing centre to show his work that he got his test and the date at the time of the test.
  • Joe is rostered to go into work at 14:00 on 14/7/2021, so he sends his manager a photo/screenshot of the date and time of the test that he was given by the testing centre.
  • Joes Manager clears Joe to work as rostered and outlines that when he gets his results to let the manager know (and the manager needs to be swift in responding to isolate work contacts, clean site and liaise with NSW Health if Joe gets a positive result).
  • Joe can now present to start work in Test Window of the time between the 72h from 13/7/2021 22:00 to 16/7/2021 22:00 (this means that if Joe is working a shift that starts at 21:00 on 16/7/2021 he can work the whole shift as the Test Window.
  • If Joe is rostered to work any time after 16/7/2021 22:00 he will need to get another test to create another Test Window.

Q: Workers have to carry copies of their test evidence to show police and managers, but what do I need to have as evidence as a business?
A:  Yes. The worker faces a $1000 fine if they are in breach of the surveillance testing requirements (e.g. they leave the Fairfield LGA without Testing Evidence on them). The business faces a $5000 fine if they are in breach of the surveillance testing requirements (e.g. allowing a worker to start a shift when the Testing Evidence is not held showing that their shift started less than 72h after their last test).

Q:  What if the employee refuses to get tested?
A:  If an affected employee refuses to get tested then they are unable to present to work. If they present for work they are in breach of the Public Health Orders. If the business allows them onsite to work then the business is in breach of the Public Health Orders. So if the employee refuses to get tested then they are to be stood down without pay. The reason it is without pay is that the reason for the stand down is something that is outside of the businesses control. The business did not see the Public Health Order and has no control over it. Remember when an employee is stood down without pay the business should make available to access any accrued leave entitlements (like personal and annual leave) and should confirm in writing the reason for the stand down… in this case “stood down without pay due to refusal to follow the Public Health Order requiring surveillance testing of all Fairfield LGA residents when leaving the Fairfield LGA for essential work.”

Q:  Can I just not roster workers from the Fairfield LGA?
A:  This one is a bit harder to give a clear answer to. The Premier and Minister have pleaded with businesses to not use affected workers if at all possible, however, there are Fair Work implications to such actions that must be considered. When it comes to permanent staff there is a contractual commitment between the business and the employee about time that the employee will work and thus receive payment for. If the employee is willing to get tested and comply with the Public Health Orders then the business may be at risk of adverse action if the business chooses not to roster an employee based on where they live. ACAPMA cautions businesses against this course of action, much more desirable is active conversations with affected employees and seeking their engagement and agreement on any temporary changes to rosters that take into account these latest developments.

Q:  Is driver delivering stock to my store a “worker?” What about a uber/menulog driver picking up from my store?
A:  A worker is a person who is conducting work at the site. Work can be paid or unpaid and includes;

  • Suppliers delivering to the site.
  • Contractors doing construction and maintenance on site.
  • Work Experience persons working on site.
  • Volunteers working on site.

The question about uber/menulog drivers is a pointed one. According to the standard definition of a worker an uber/menulog driver is clearly a worker who is doing part of their work while picking up food/snack orders, and thus the business would need to see Testing Evidence… but practically this is a completely unworkable situation and it is clear from communications with Health that it is not the intention that every business that allows delivery with uber/menulog etc has to see the Residential Address (and for affected employees the Testing Evidence) for all uber/menulog etc drivers that arrive on site.

ACAPMA is seeking formal advice on this area, but until it is received it is recommended that a specific notice to delivery partner workers be placed at the entrance to the store;
“Notice to [uber/menulog/Deliveroo etc] workers. As required by Public Health Orders, you may not enter this workplace to do work if you are an affected worker (residing in the Fairfield Local Government Area) unless you have evidence of receiving a Covid-19 surveillance test in the last 72h. You may be asked to provide evidence of your residential address and/or your Testing Evidence if you enter this workplace.”

Q:  Is it all the same for persons from Greater Sydney (including Blue Mountains, Central Coast, Wollongong and Shellharbour)?
A:  Yes, but the dates and the Testing Window differs. If a worker lives in Greater Sydney and is traveling more than 50km outside of Greater Sydney for work, then they must undergo surveillance testing for Covid-19 every seven days and carry with them Testing Evidence. The grace period for enforcement for this is until 23:59 18/7/2021. Thereafter every worker leaving the Greater Sydney area must have Testing Evidence on them, and businesses must not allow workers onsite to work unless they have Testing Evidence showing that the shift starts within the seven-day Testing Window since the last test. Just like with the affected workers from Fairfield LGA penalties apply to the worker and the business and if the employee refuses to get tested then standdown is appropriate.

Q:  Is there a template letter to give to my staff?
A:  Yes, every business is different but the draft below communicates the requirement, the system for communication and the scenarios of testing refusal;

Dear [name], 

Thank you for confirming your place of residence. 

Your place of residence is listed as being in the Fairfield Local Government Area. 

As you know as a person who works at a fuel retail establishment you are an essential worker. 

As you may know the NSW Government, via the Public Health Orders, have required that all persons that live in the Fairfield Local Government Area and who have to leave the Fairfield Local Government Area for essential work, must;

  • Not leave the Fairfield Local Government Area unless you have undergone surveillance testing for COVID-19 in the prior 72h.
  • Keep Testing Evidence, evidence of getting the Covid-19 test (a text message or slip of paper with the date and time of the test), on you at all times when leaving the Fairfield Local Government Area.
  • Present Testing Evidence to police or the operator of a premises where you do work (your manager) on request.
  • Present Testing Results to police or the operator of a premises where you do work (your manager) on request. Failure to meet these requirements of the NSW Government is enforceable by the police and breaches will result in on the spot fines of $1000 to workers and $5000 to businesses, with more serious breaches leading to further prosecution.

What you need to do now;

  • Before 23:59 16/7/2021 you will need to get a Covid-19 Test.
  • Send the Testing Evidence showing the date and time of your Covid-19 Test to [site manager name and phone/email].
  • Carry your Testing Evidence with you when you leave the house to come to work.
  • Present your Testing Evidence to police and workplaces on request.
  • Send your Test Result to [site manager name and phone/email] when you receive it.

It must be noted that after 23:59 16/7/2021, if you refuse to present Testing Evidence that is within the 72h window before your shift start you will not be allowed onto site and will be stood down without pay as the business is not legally allowed to have you onsite to work and thus the business is not responsible for the prevention of your work. You will be allowed to access any accrued annual and personal leave that you have accrued in the event of a stand down without pay.

We understand that this is a stressful and frustrating time and appreciate your patience and cooperation in what is a necessary action.

Kindest Regards

[name]

Q:  What is the actual Public Health Order?
A:  Public Health Order – https://legislation.nsw.gov.au/file/Public%20Health%20(COVID-19%20Temporary%20Movement%20and%20Gathering%20Restrictions)%20Amendment%20(No%206)%20Order%202021.pdf.

Q:  How do I know the surveillance testing areas?
A:  Surveillance Testing Information including maps – https://www.nsw.gov.au/covid-19/rules/greater-sydney-workers.

Here to help

HR Highlights are things to consider, implement and watch out for in your business. They are provided as general advice and you should seek further advice on your situation by calling 1300 160 270 and speaking to one of ACAPMA Workplace Relations Professionals. It’s free for members.

Published with permission from ACAPMA.

Source: https://acapmag.com.au/2021/07/nsw-surveillance-testing-what-does-it-mean-for-employers/

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