Published 05-02-2021
| Article appears in February 2021 Issue

Government COVID-19 directions are a legal minefield for employers

03-02-2021
According to The Employment Law Practical Handbook, there are significant legal risks and liabilities for employers that fail to comply with these directions.

Australian employers and workers are required to abide by directives issued by their state or territory government to prevent the spread of COVID-19.

According to The Employment Law Practical Handbook, there are significant legal risks and liabilities for employers that fail to comply with these directions.

Among other obligations, employers are required to implement a COVIDSafe Plan and ensure workers abide by it, allow staff to work from home if practical, ensure workers carry and wear face coverings when required, and comply with social distancing restrictions for shared spaces.

Serious liabilities can result from an employer not complying with COVID-19 directives.

For example, if a manager asked an employee to attend the workplace for a meeting that could have been conducted from home and the employee unknowingly has COVID-19 and infects their co-workers, the co-worker could suffer permanent damage to their lungs.

This may expose the employer and the manager to a common law negligence claim seeking damages for pain, suffering and economic loss on the basis that the manager who asked them to work failed to meet their duty of care.

The employer would be required to notify the safety regulator of the co-worker’s infection. The regulator may investigate the employer and may bring criminal charges against the employer and the manager for failing to meet their work health and safety obligations.

Suppose a manager repeatedly performs work outside their ‘workplace bubble’, which requires other workers to do the same. This may contravene density restrictions and social distancing recommendations, resulting in a case of COVID-19 spreading throughout the workplace and infecting some visitors and contractors.

If a contractor is hospitalised and dies as result of the virus, the manager’s negligent conduct may expose them to charges of industrial manslaughter (in those jurisdictions where the offence applies).

Some workers who cannot work from home may suffer stress about their employer’s compliance, or non-compliance, with COVID-19 restrictions. If they are diagnosed with anxiety, which is attributed to workplace stress, they may bring workers’ compensation claims seeking compensation for their psychological injuries.

Aside from the potential legal exposure, any investigation or prosecution by the authorities will adversely affect the reputation of the employer and its business.

When it comes to compliance with restrictions and guidelines to help stop the spread of COVID-19, you must be vigilant. Take all steps you reasonably can to protect your workers and other who have contact with your business.

The more prepared you are, the less your risk of legal exposure – and the less the risk of spreading COVID-19!

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