HRM examines when employees can claim compensation and what employers should do to keep staff safe. 

We’re at an odd conjuncture. Life is opening up again and we can go to restaurants and visit family with fewer restrictions. We are also returning to our workplaces, where there are real people to talk to in-person (instead of having worryingly long conversations with our cats). But alongside this general sense of hope is the knowledge that COVID-19 hasn’t disappeared from Australia and there is still a chance of infection. 

This concern is particularly centred on the place we spend one third of our life: work. Good employers are focused on how to keep workplaces hygienic and safe, but no effort is perfect. So who is responsible if the worst does happen and someone contracts COVID-19 while at work? 

At the workplace

“Where an employee contracts COVID-19 at work as a result of the employer’s failure to provide and maintain a working environment that is safe and without risks to the health of its workers, so far as is reasonably practicable, the employer could, in theory, be liable for penalties for breaching the OHS Act,” says Georgie Chapman, workplace relations and safety lawyer at HR Legal.

“In saying this, it’s more likely that this would result in lower-level enforcement action, such as improvement notices, unless it was an exceptional case.”

It is also possible employees could be entitled to workers compensation if they contract COVID-19 at work, says Chapman.

“There have already been reports of such claims being accepted by agents. In saying this, for the illness to be considered work-related and therefore compensable under the scheme, there needs to be a clear link between their employment and contracting the virus.

“Where the worker’s employment puts them at greater risk of contracting COVID-19, it might be more likely that the illness is work-related such as health care workers. Current measures in place concerning contract tracing will likely be a relevant consideration.”

The government has issued strict guidelines on how to keep workplaces safe, so if an employee catches COVID-19 due to a failure to follow these guidelines then their employer could attract penalties or a common law claim. Due to the extensive media coverage and easy access to information, the employer would be hard-pressed to prove they were unaware of the requirements. 

When it comes to workers compensation, even SafeWork Australia admits there is a grey area on whether employees are eligible for compensation. 

Since workers compensation can vary between states, employers should check with their relevant authority. The Safe Work Australia website says in most circumstances two criteria need to be met before an employee can claim worker’s compensation for contracting the virus.

• They must be covered by their workers’ compensation scheme, either as an employee or a deemed worker. 
• They must have contracted the COVID-19 virus out of or in the course of their employment. 

Outside the workplace

Employers can and will do their utmost to keep their workplaces safe but, as HRM has covered before, there is little they can do to protect workers outside of work.

One area of concern is employees catching public transport to and from work. In an interview with the ABC, Liberty Sanger, a principal lawyer at Maurice Blackburn said, “If [an employee] contracts it on public transport but brings it into your workplace there may be some ambiguity about whether you’re liable for that person, but there won’t be any ambiguity about whether you’re liable for everybody else.”

From a compensation standpoint, workers would not be eligible for compensation if they contract the disease due to anything that isn’t work-related. This includes if they pick up COVID-19 while attending medical appointments as part of an existing claim.

The government’s national authority for work health and safety, and workers’ compensation, Comcare, is a useful resource during this pandemic. Its website states: “The Safety, Rehabilitation and Compensation Act provides coverage for an injury suffered ‘as a result of’ medical treatment that was obtained in relation to an existing compensable injury. The contraction of a virus is not ‘as a result of’ medical treatment, but rather a result of potential exposure to the virus in the community or while accessing a medical facility.”

Comcare also has further advice for employers, if you are interested.

Employer obligations

The exact guidelines organisation must comply with vary between industries. Safe Work Australia details what they are on its website. But in general, employers have several duties when it comes to workplace safety. These include not just their duty to workers, but duties to other people in the workplace (customers, clients, etc) as well duties to consult, keep workplaces clean, and advise and train staff on best hygiene practices.

Here are some of the overall principles that all employers should be adhering to:

• Provide hygiene facilities including washrooms, adequate supply of soap, water, paper and hand sanitizer. Employees must have easy access to these supplies and be allowed regular breaks to use these facilities as needed.
• Require workers to practise physical distancing, including rearranging workspaces so employees can continue their work while remaining 1.5 metres apart.
• Make sure workplaces undergo regular cleaning

Employers must also supply information and training to staff to reduce the spread of COVID-19. This includes training employees on how to wash their hands effectively, use personal protective equipment, and how to clean their workstations throughout the day. 

Finally, employees must also be encouraged to stay home if they are feeling unwell. Working while sick, even if the sickness feels mild, is simply too big a risk in the current environment.

While there is a lot of information out there, if you are unsure of your organisation’s specific situation you should seek individual legal advice.

If you’re planning a return to the workplace, then make sure you attend AHRI’s webinar: “Preparing for an effective COVID-safe return to workplaces”. Register now.