Much has been discussed about the liability issues surrounding employer’s obligations around COVID-19 at work – but this case is a first of its kind.

There have been plenty of cases in the United States of workers suing their employer because they caught COVID-19 at work. These mostly stem from the employer’s failure to provide a safe workplace or space during the pandemic, which leads to workers catching the virus at work. 

In Australia, the equivalent cause of action would be an employer failing to meet its obligations in relation to work, health and safety, which caused an employee to suffer illness and/or injury.

But what happens when an employee’s household catches COVID-19? In a US ‘first of its kind case’, a federal judge has recently weighed up a claim filed by an employee’s spouse, against their spouse’s employer.  

The spouse is suing the employer for bringing COVID-19 into their household via her husband, who she alleges caught the virus at work. The judge is still deciding whether to let the case proceed, considering the claims regarding the genesis of the virus are yet to be proven.

The spouse alleges her husband’s employer breached US COVID-19 safety guidelines by failing to take basic precautions when it moved workers from one site to another, which caused her husband to contract COVID-19, bring it home with him and infect her. As a result, the spouse was in hospital for weeks on a ventilator.

Allowing the case to proceed would require the judge to set a legal precedent about whether an employer’s duty to provide a safe workplace for its employees extends to the employee’s family members.  

Could this happen in Australia?

While the US and Australia are different jurisdictions operating under different systems of law, there are similar principles under Australia’s work, health and safety laws.

As many readers are aware, in Australia, employers have general work health and safety obligations under relevant work/occupational health and safety legislation in the states and territories, including in relation to COVID-19. Generally speaking, employers have a duty to, so far as is reasonably practicable:

• Eliminate risks to health and safety.
  
• Provide a working environment for its employees that is safe and without risks to health (including the provision of safe systems of work; provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work.
  
• Ensuring the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from work.
  
• Ensure that persons other than employees are not exposed to risks to their health and safety arising from the conduct of the employer’s operations.

If it’s not reasonably practicable to eliminate risks to health and safety, the employer has a duty to minimise those risks as far as is reasonably practicable.

If employers fall short of their obligations to provide a safe working environment there is a risk of liability under applicable work/occupational health and safety legislation.  

The penalties for breaching these obligations are severe for employers, and in some cases, individuals.  

This risk is higher if COVID-19 is contracted at the workplace. But there are also risks if the employer is aware that an employee or customer has contracted COVID-19 away from the workplace, or the source is unknown, and does not take steps to manage the risk of infection to employees and others.

“In allowing employees to attend work if they have not had the vaccine, would employers be failing to do everything “reasonably practicable” to prevent the risk of employees (and their households) catching COVID-19 in the workplace?”

What is “reasonably practicable”?

As an Australian employer’s duty is to eliminate risks as far as reasonably practicable, and otherwise minimise risks as far as reasonably practicable, it’s worth understanding constitutes as “reasonably practicable”.

By way of example, under NSW legislation it means what was, at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters, including:

• The likelihood of the hazard or the risk concerned occurring.
  
• The degree of harm that might result from the hazard or the risk.
  
• What the employer knows, or ought reasonably to know, about: the hazard or the risk; ways of eliminating or minimising the risk; and the availability and suitability of ways to eliminate or minimise the risk.
  
• After assessing the extent of the risk and the available ways of eliminating or minimising the risk, identify the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

Vaccines at work: are employers liable?

With the COVID-19 vaccine recently being rolled out across Australia, it’s interesting to consider whether employers who do not mandate the vaccine for their employees would be liable for breaching WHS duties. 

That is, in allowing employees to attend work if they have not had the vaccine, would employers be failing to do everything “reasonably practicable” to prevent the risk of employees (and their households) catching COVID-19 in the workplace? 

This is bound to become a hot topic as the availability of the vaccine increases.  

Earlier this month, industrial relations minister Christian Porter said that the “overwhelming majority” of employers should assume they have no power to force employers to vaccinate against COVID-19.  

It is likely that mandatory vaccines could only be enforced by a public health order, and will largely be dictated by public health advice.  

If employers are satisfied that there is a low likelihood of its employees contracting or spreading COVID-19 by virtue of: being in the workplace; knowing what they ought to know about COVID-19 (e.g rate of transmission, number of community cases, circumstances in which it is more likely to spread); and there being suitable available ways of minimising the risk of infection and transmission, then it’s likely that an employer could assert that it’s not reasonably practical to eliminate the risk of COVID-19 all together.

Instead, it could claim it has taken all reasonable steps to minimise the risk through implementing robust risk-minimisation processes. In relation to the vaccine, this could mean, for example, suggesting and strongly encouraging employees to get the vaccine, without making it mandatory.  

Minimising the risk for an employee, and accordingly their spouse at home, from contracting COVID-19 in the workplace may prevent claims such as the US case outlined above from being successful in Australia. It would certainly minimise the risk of an employer being held liable for breaching its WHS obligations.

AHRI’s COVID-19 resource webpage is full of helpful information, including factsheets, guides, expert discussions, webinars and templates. Some information is free to the public, but other aspects are exclusive to AHRI members.

Practical tips moving forward

To further minimise the risk of breaching WHS obligations, we suggest employers:

• Follow all recommendations by health and government authorities.
• Observe and implement physical distancing guidelines.
  
• Ensure employees do not share equipment that may be more likely to transmit COVID-19.
• Ensure employees are provided with disinfecting equipment, e.g. wipes and spray, to further disinfect equipment if desired.
  
• Ensure employees are trained in proper personal hygiene e.g. handwashing, physical distancing, mask wearing, and staying home if they are unwell. 
• Put policies in place to ensure employees do not attend work if they are showing the faintest sign of illness.
  
• Ensure you have a robust COVID-19 safety plan in place in circumstances where an employee or close contact becomes infected with COVID-19. 

Aaron Goonrey is a partner and Isabel Hewitt is a lawyer in Lander & Rogers’ Workplace Relations & Safety practice.