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If there is an increased risk of our workers contracting COVID-19, could we be held liable if they are infected in the course of their employment?
This is possible, but, in the absence of negligence on the part of the employer, liability is unlikely.
The primary common law liability risk for employers will be alleged negligence for breaching your duty of care. An employer may only be liable if it failed to protect an employee by taking reasonable steps to prevent their exposure to the virus.
Failure to take reasonable precaution may include:
- not acting quickly enough to send an infected employee home
- not permitting the employee to work from home when this was reasonably practical and there was a heightened risk of infection in the workplace
- not providing employees with appropriate personal protective equipment, or
- not implementing appropriate and reasonable safety-related protocols such as providing hand sanitiser and observing social distancing where reasonably practical
Employers are also under obligations at a state and territory level to comply with work, health and safety laws. A failure to take reasonable steps in response to COVID-19 may also amount to a breach of the employer’s statutory duty of care to provide a safe workplace.
For these reasons, all employers must have a multi-pronged COVID-19 response plan in place that is under constant review, and regularly updated and communicated to all workers as the COVID-19 outbreak develops.
The COVIDSafe app
Encouraging your staff to download the COVIDSafe app may be a reasonable precaution to ensure the health and safety of your staff and service users. However, organisations can’t require its employees or volunteers to download the COVIDSafe app or exclude them from participating in your organisation if they haven’t downloaded the app. Such action is expressly prohibited under Commonwealth law.
Justice Connect member law firm, Hall and Wilcox has provided guidance on this.
Probably not, but it’s a possibility if an employer unreasonably failed to minimise the risk of an employee’s exposure to the virus or knowingly placed the employee at a greater risk of contracting the virus.
As a general rule, the workers’ compensation insurer would need to be satisfied that the virus was contracted in the course of the employee’s employment and that the employment ‘significantly contributed’ to the employee contracting the virus. In other words, the workplace must be more than just the location where symptoms first presented.
It can be difficult to accurately determine the exact time and place of contracting a virus. This means it may be difficult to determine that employment significantly contributed to the contraction of the virus.
However, where an employee’s employment put them at greater risk of contracting the virus, the significant contribution test may be easier to meet - for example, if the employer required the employee to interact with people who had contracted the virus. For this reason, health care workers would likely have a stronger basis to claim their contraction of the virus was work-related.
Each claim would need to be considered on its individual merits, having regard to the individual circumstances and evidence in relation to the claim. Also, see our COVID-19 resources on insurance.