COVID and Work Liability
10 Mar, 2021, 5:30 AM
The coronavirus disease (COVID-19) pandemic has spread all over the world, including more than 29,000 cases and close to 1,000 deaths in Australia. The pandemic has had a deep impact on the physical and mental health of workers across industries due to job losses, the need to adapt to the new normal, and a fear of contracting the virus. The impact has been especially severe on employees who work in high-risk environments, such as healthcare workers.
What does COVID mean for organisations in terms of liability if an employee contracts the virus? Can healthcare workers who catch coronavirus at the workplace claim compensation from their employer? What can organizations do to keep staff safe and reduce their liability?
Is the Organisation Liable if a Worker Contracts Coronavirus?
The coronavirus pandemic has placed organisations in a catch-22 situation. Life needs to carry on and businesses need to reopen. Yet, returning to the workplace puts employees at risk of contracting COVID. If an employee contracts coronavirus while at work, who is responsible?
There are two scenarios here – the first is when an employee catches the virus at the workplace. In this situation, if it can be demonstrated that the employer failed to provide a safe working environment, they can, in theory, be held liable and may invite penalties under the OHS Act. In such cases, the employee may be entitled to workers compensation because the illness will be considered work-related.
An interesting situation is when the nature of a person’s work puts them at increased risk of COVID, for example, healthcare workers. SafeWork Australia says this is a grey area and it is unclear whether healthcare workers would be eligible for compensation if they get COVID. The key factor that will be taken into consideration will be whether the employer followed all government guidelines to make the workplace safe.
If an employee contracts COVID outside the workplace, they would not be eligible for compensation because the disease was a result of something that isn’t work-related. This includes catching the virus at a medical appointment for previous work-related injuries. However, there is ambiguity about compensation if an employee catches the virus while taking public transport to and from work. The employer will, however, be liable for other workers who contract the virus from an employee who brought the infection into the workplace.
Reducing Organisational Liability and Risks for Healthcare Workers
As noted, healthcare workers are at particularly high risk for contracting COVID-19. In healthcare and other industries, employers can take the following steps to reduce their liability and improve worker safety.
Provide a hygienic work environment including clean washrooms with adequate supplies of soap, water, and paper towels, as well as hand sanitizer throughout the workplace.
Ensure physical distancing, including rearranging cubicles and desks, to maintain at least 1.5 metres distance between employees.
Perform regular cleaning and deep sanitisation of the workplace.
Educate and train staff about best practices to reduce the spread of COVID.
Monitor the health of workers as far as reasonably practical.
Encourage workers who are feeling unwell to stay home. Encourage self-reporting and remove barriers or disincentives to reporting COVID positivity.
Ensure co-workers are not exposed to known positive cases through contact tracing.
Long-Term Impact of Covid on WorkCover Liability
The true impact of COVID-19 will become evident in the coming months and years. However, COVID is likely to be considered a disease under workers’ compensation laws in the various Australian territories and states. For a COVID infection to be compensable, an employee will need to demonstrate that they contracted the disease and that the disease arose from the course of their employment.
The key factor will be establishing a connection between the performance of their job and the contraction of COVID-19. However, due to the nature of the virus, it may be impossible in many cases to prove that a person’s employment was the main contributing factor and that the infection did not occur in some other setting. Nonetheless, employers will be held liable if they are found negligent and the employee suffers long-term consequences from COVID.
References:
- https://www.health.gov.au/news/health-alerts/novel-coronavirus-2019-ncov-health-alert/coronavirus-covid-19-current-situation-and-case-numbers
- https://intjem.biomedcentral.com/articles/10.1186/s12245-020-00299-5
- https://aoninsights.com.au/covid-19-impact-workers-comp/
- https://www.hrmonline.com.au/covid-19/organisations-liable-if-employee-catches-covid-19/