You may have heard about the latest COVID-19 safety measure to be introduced – rapid antigen testing (RA testing). It has been introduced as part of a new requirement under a recent public health order announced by Ms Berejiklian on Friday 20 August 2021, requiring that from Monday 30 August 2021, authorised workers in NSW local government areas of concern must have had their first vaccination in order to travel out of their area for work unless their employer provides RA testing in the workplace.
Similarly to other measures that have been implemented throughout the COVID-19 pandemic, including vaccination, information about RA testing is available in various different places. We have condensed this into the following summary.
What is RA testing?
RA testing is a fast alternative to standard COVID-19 tests (also referred to as PCR tests). Rather than taking potentially days to identify whether COVID-19 is present in an individual, an RA test screens for symptoms of COVID-19 and provides the results within 15 to 20 minutes.
A RA test involves a nasal swab using a small cotton bud that after swabbing is placed into a chemical solution. After 15 to 20 minutes, the solution will display whether there are any symptoms of COVID-19 present in the person swabbed.
The NSW Government recognises that RA tests will detect most cases of COVID-19. However, it has advised that they are not as accurate as the standard COVID-19 test.
Access to tests
In NSW, employers can now implement rapid antigen testing screening for their workforce. However, the Therapeutic Goods Administration (TGA), Australia’s medicine and therapeutic regulatory agency, has advised that test kits are only legally supplied under specific conditions on the basis that the tests need to be implemented properly, interpreted correctly, and administered with appropriate corresponding advice.
Therefore, the tests can be supplied by specified health practitioners at the point of care only to specific providers, including registered medical practitioners or paramedics, or an organisation, business or institution that employs or engages a registered medical practitioner or paramedic to perform or oversee performance of the test.
The present TGA advice is that RA tests cannot be supplied for the purpose of providing a testing service in a pharmacy or dental practice, and they cannot be supplied to pharmacies for retail sale to consumers.
For NSW Health’s guidance on implementing RA testing in the workplace, including a list of COVID-19 test kits that are available for legal supply in Australia, please see here.
Who can test?
The TGA prescribes that an RA test must only be performed by one of the following:
- A qualified health practitioner, medical practitioner or paramedic who is trained in test administration (see section 3 of the Therapeutic Goods Act 1989); or
- Another person who is trained in the correct use of the testing device (including specimen collection) and interpretation of results, who is supervised by a qualified health practitioner, medical practitioner or paramedic.
Everyone who performs a test must be trained in how to do so before hand (face-to-face or online accepted) and cannot learn ‘on the job’. Specifically, it is considered a minimum requirement by the TGA that the supplier of the test provides training to the relevant health practitioner or paramedic who may be overseeing a further administrator or conducting the testing themselves.
According to TGA advice, this training will not require certification but will involve a means of assessing and recording individual competency. This is in part due to the high level of responsibility carried by a person conducting a test, who will hold full responsibility for the test process itself including proper record-keeping. Furthermore, any health practitioner undertaking testing will need to ensure notification protocols for positive results are followed as per the national guidelines. Failure to do so may amount to professional misconduct.
How often should you test?
The TGA advises that RA testing should be conducted two to three times per week.
Testing times should be organised by an employer according to the genuine needs of the business and personal circumstances of the applicable individual to be tested.
To clarify, where a worker receives a positive rapid antigen test, this is not to be taken as a definitive result. On each occasion, it should be followed up immediately with a regular COVID-19 test, or PCR test (polymerase chain reaction test) due to the risk of false positive and false negative results with the antigen testing.
According to Ai Group Chief Executive Innes Willox, there is significant interest in the RA testing among employers. However, there are wide reports of equally significant hurdles, such as the cost of RA test kits (between $20 and $100 per test depending on the provider) and the intense requirements around their administration. This stands in stark comparison to the same testing overseas in countries such as in the UK where the tests are free and widely available to the public. Accordingly, it has been suggested that the Australian government should be prepared to cover the costs associated with testing by employers, but no such arrangements appear to be in the making at this time.
The practical reality is that due to the inaccessibility of RA testing, employers of persons captured by the recent health order referenced above, particularly small business employers are more readily mandating the COVID-19 vaccine for their staff.
At the same time, the testing has been viewed as an important development within the building and construction industry, which has been significantly affected by the limitations set throughout this current lockdown on how many workers were allowed on site and corresponding testing requirements. It will save employers in this industry significant time, although at notable financial expense.
As a practical consideration, employers might consider implementing rapid antigen testing only as an alternative risk prevention method where, for example, an authorised worker refuses or is unable to get a COVID-19 vaccination. This will form part of an employer’s duty to ensure, so far as reasonably practicable effort to ensure it has considered, as is its duty, all reasonably practicable alternatives to risk management other than termination of employment for such workers.
If you require assistance with a COVID-19 workplace policy, workplace vaccination or with managing employees covered by recent public health orders, please don’t hesitate to contact a member of Coleman Greig’s Employment Law team, who would be more than happy to assist you today.