WHS Enforcement Plan for COVID-19 Revised by SafeWork NSW and Employer Held Liable for COVID-19 Death

In January 2022, Safework NSW (“Safework”) has amended its statement of regulatory intent with respect to COVID-19.

The noticeable omission from the statement was the explicit protections, that were discussed by the National Cabinet, to protect employers who do not mandate vaccinations. In fact, Australia’s premiers and chief ministers agreed at an August 2021 meeting to consult their WHS regulators on amending their enforcement policies to ensure businesses are not accused of breaching WHS laws for not mandating COVID-19 vaccines for staff and others. This suggestion from the cabinet was widely criticised by WHS experts, who said such a policy would constitute a shift away from the risk-based framework of the country’s WHS legislation, and would be potentially incorrect at law.

The current advice for Employers is that NSW businesses must take action to prepare and manage the risk of exposure to COVID-19 for workers and others at their workplace so far as is reasonably practicable consistent with statutory requirements and in line with Public Health Orders.

SafeWork first released its statement of regulatory intent for the pandemic in March 2020, outlining plans to “take a reasonable and proportionate response” to enforcing compliance with certain WHS duties where a duty holder is constrained by COVID-19 issues.

It said these duties included: participating in face-to-face training and practical hands-on training demonstrations; maintaining records in prescribed formats; securing access to health surveillance clinics; testing emergency plans; and complying with “other regulatory requirements“.

The revised statement adds, to this list, the duty to make notifications about COVID-19. However, it stresses that PCBUs should continue to notify SafeWork of any work-related fatalities, serious injuries or illnesses, including COVID-19 cases.

Safework NSW advise that all businesses should:

• review their exposure and infection control policies and procedures, actively promote social distancing, good hand and respiratory hygiene and ensure cleaning of common areas within the work environment;
• develop and implement safe systems of work (in consultation with workers and/or their HSR’s) that include directions and advice provided by our health authorities;
• keep monitoring the COVID-19 situation as it develops; and
• continue to comply with statutory requirements including notifying SafeWork NSW of any work-related fatality, serious injury or illnesses (including COVID-19).

Ensuring that your business effectively implements and carries out the above protocols is essential to reduce your WHS legal liability.

NSW Health Recommendation

The WHS duties surrounding COVID-19 are particularly important given the NSW Health Recommendation in early March for the reintroduction of mandatory indoor masks, density limits, a ban on singing and dancing, and a return to working from home ahead of daily COVID-19 cases reaching a projected 25,000.

The recommendations were contained in an internal presentation to Health Minister Brad Hazzard. The recommendations represent a return to the restrictions in place before 18 February 2022.

In March 2022, Mr Hazzard said the new Omicron subvariant – known as the BA-2 strain – was a timely reminder the community had a “responsibility” to get vaccinated to continue living without restrictions.

“The pandemic has not gone away,” he said.

“The advice is it’s much more transmissible. So we are expecting that more people may get it. Potentially that means more people in hospital and more people potentially in ICU and possibly dying.”

This timely advice reaffirms that the COVID-19 pandemic is something that businesses will likely have to deal with on an ongoing basis.

Employer held liable for COVID-19 Death

Last year, In the Australian case of Sara v GMS Sara Pty Ltd, an employer was held liable for the death of an employee whilst travelling for work.

The estate of a deceased worker was awarded $834,200 in a lump sum payment in addition to $11 million (USD) for the cost of medical and hospital related treatment which the deceased worker received in New York.

Whilst this is an extreme example of employer’s liability with respect to COVID-19, it demonstrates that where an employee contracts COVID-19 in the course of their employment, the employer may be liable for compensation payable to the worker which includes but is not limited to medical treatment expenses, weekly payments and in circumstances where the injury is serious enough, death benefits as well.

This decision serves as a costly reminder about the WHS liability surrounding COVID-19 in the workplace, and the risk that COVID-19 poses to workers.

The Takeaway

It is essential that businesses stay up to date on what is expected of them from Safework NSW with respect to their WHS obligations and COVID-19.

This is critical due to the very real possibility of being prosecuted for risks to health and safety arising from an employee contracting the COVID-19 virus in the course of employment. The decision underscores the importance of taking all measures, so far as is reasonably practicable, to prevent the transmission of COVID-19 in the workplace. Employers should be aware of their obligations to provide a safe work environment and the extent this may require them to mandate vaccination in the workplace, even in the absence of health directives to do so.

We strongly advise that all employers consider implementing COVID-19 policies to effectively manage the safe return to work amidst the global pandemic. If you have further questions about implementing a COVID-19 policy in your business, or questions about your WHS duties with respect to COVID-19 more generally, please do not hesitate to contact Nick Stevens, Luke Maroney, Daphne Klianis or Josh Hoggett.