The current global health crisis has changed the employment landscape considerably and introduced terms like ‘self-isolation’, ‘lockdown’ and ‘social distancing’ into our everyday vernacular – and now, for employers and employees working or living in the Greater Sydney area, there is another to contend with: ‘surveillance testing’.

On 14 July 2021, mandatory surveillance testing was introduced in New South Wales giving employers and employees very little time to understand and implement appropriate protocols. In this article we break down what employers need to know and provide practical guidance to deal with tricky situations.

Surveillance testing – who, what and when?

Who: there are two categories of workers affected by the surveillance testing requirements:

1. Any worker who:

  1. lives in, or has temporary accommodation in, the City of Fairfield (or any other Local Government Area (LGA) specified by the Chief Health Officer published on the website of NSW Health), and
  2. works in an area outside of their LGA.

We’ll refer to this group as Fairfield Workers.

2. Any worker who:

  1. lives in, or has temporary accommodation in, Greater Sydney, and
  2. works at a location more than 50km from the outer boundary of the Greater Sydney area.

We’ll refer to this group as Sydney Workers.

What: Fairfield and Sydney Workers will not be permitted to enter a premises for work unless they can, upon request by their employer, the occupier of the premises or the Police, produce evidence (i.e. a text message or email) confirming that they have had a COVID-19 test.

When: the frequency of testing differs for Fairfield and Sydney Workers. Commencing on 17 July 2021 Fairfield Workers must be tested every 72 hours (3 days) and from 19 July 2021 Sydney Workers must be tested every 7 days.

What does this mean for employers?

All employers who employ Fairfield or Sydney Workers must refuse access to the workplace if they cannot produce evidence that they have complied with their respective testing obligations. Penalties, including on the spot fines, may be imposed for any breach of these requirements.

It is important to note that surveillance testing provisions only require evidence that the Fairfield or Sydney Worker has been tested (and not that they have a negative test result). That said, all employers are required to notify SafeWork NSW of any serious illnesses (including COVID-19) arising out of work.

If an employee returns a positive COVID-19 test, does not apply to take accrued leave (such as sick leave or annual leave) and is unable to work remotely, an employer may have the ability to stand the employee down. Whether this is with or without pay will largely depend on the application of any industrial instrument, the terms of any written employment contract and the individual’s circumstances and responsibilities.

If you find yourself in this situation, please speak to a member of our Workplace team to learn more about your options.

Support measures

In response to the pandemic and the extension of lockdown restrictions, the Federal Government and NSW State Government announced the introduction of a number support measures available for Greater Sydney and New South Wales. The support measures cover:

1. Individuals: relief payments available where an individual (full time, part time or casual) has had a reduction of:

  1. 8 to 20 hours will receive $375 per week, or
  2. more than 20 hours will receive $600 per week.

2. Businesses:

  1. Support payments are available for businesses with an annual turnover between $75,000 and $50 million who can demonstrate a 30% decline in turnover and they maintain their full-time, part-time and long-term casual staffing level as of July 13, 2021.
    For businesses (including not-for-profits but excluding sole traders) payments range from $1,500 to $10,000. Sole traders may be eligible for payments of up to $1,000 per week.
  2. Small Business Grants – NSW small businesses with:
    1. annual wages up to $10 million will be able to access small business grants between $7,500 and $15,000, and
    2. smaller micro businesses with turnover between $30,000 and $75,000 may also be eligible to apply for recently announced and specialised grants.
  3. Payroll tax waivers of up to 25% are available for businesses who have experienced a 30% decline in turnover and a wage expenditure of between $1.2 million and $10 million.

We recommend you seek independent accounting advice to ascertain whether you or your business may be eligible for support payments.

In summary

The new NSW surveillance testing requirements are reflective of the unprecedented and rapidly moving new world we find ourselves in. Now more than ever it is important that employers and business are fully across their legal responsibilities so that they can put appropriate measures in place.

If you would like specific advice as to how best to implement surveillance testing processes and procedures, please speak to a member of our specialised Workplace team.