As the government has tightened restrictions on mass gatherings from 500 to 100 people and emphasised the importance of social distancing, many people have been left feeling confused and anxious with exemptions including public transport, schools, and workplaces, just to name a few. Yet an increasing number of institutions seem to be taking it upon themselves to protect their workers by asking them to work from home where possible.
Last week, Telstra asked over 20,000 of their employees to work from home. EY and Atlassian have also shut their Australian offices, and multiple law firms have commenced the new norm that is working from home. It also seems that office equipment is the new toilet paper as stores are selling out of monitors, webcams, and office chairs, as workers have made, or are anticipating to make, the transition.
So what could happen if your employer does not implement preventative measures and you contract COVID-19 at work? Is your employer liable for failing to provide a safe working environment? Can you be fired for refusing to come in and requesting to work from home instead?
The answers to the posed questions are complicated and slight differences in fact situations may lead to a variety of outcomes. In negligence, a duty of care between the employer and employees will need to be established which is unlikely to present a difficulty. However, employees are also likely to owe their employers a duty to comply with recommended health and safety practices that the company has implemented.
Whether the employer’s actions or omissions are enough to constitute a breach of a duty may include whether contracting the virus by continuing work was foreseeable at the time. Given that the current numbers sit at approximately 0.003% of our population, this may present a barrier. The risk must not be something minor either, meaning inconvenience alone from dealing with mild flu-like symptoms is unlikely to be sufficient in a claim for negligence. The court may also evaluate what another reasonable employer would have done (or not done) in the same situation and the burden on the employer to take practical precautions.
One would also have to establish that they contracted the virus in the course of employment, something not-contentious in most physical injury cases. Although, because of the highly contagious nature of this disease and the time between contraction and becoming symptomatic, it may be difficult to establish that someone didn’t get the virus from a friend or family member, on public transport, or at the supermarket.
Depending on the jurisdiction, there are also statutory limits which control the amount of compensation which can be awarded if successful. For instance, no such claims are allowed in the Northern Territory and are difficult in South Australia.
On a different note, is there any scope for the law to intervene if an employer has failed to provide a safe working environment? Under the Occupational Health and Safety Act (Vic), all employers of employees are required to provide and maintain an environment that is safe and does not compromise employee health. However, the duty is limited to what is reasonably practical and it would be unlikely that it would be held reasonably practical for employers to enforce and monitor their employee’s personal hygiene habits at all times of the work day or conduct OH&S checks for their home offices.
But what if an employee doesn’t want to come to work? Can someone be fired for self-isolating? If they are presenting with flu-like symptoms, the current advice is to stay home from the workplace. It could be problematic for a company if someone was fired for following the government’s recommendations. Employees which meet certain criteria also have a right to request flexible working arrangements, which could include working from home. For those who do not fit in the established categories and would prefer to work from home, the answer is not entirely certain.
Overall, employers have a duty to look after their workers’ health and employees have a duty to watch out for the health of themselves, colleagues, and to follow any recommendations implemented. It is unlikely that simply contracting COVID-19 at work, even if someone could prove it, would result in an award of compensation. If the $20,000 fine for failing to self-isolate is anything to go by, employers are unlikely to be immune from penalties if they deliberately go against other measures implemented by the federal government in the future. Nevertheless, the upcoming months will surely be an interesting time in litigation and create an influx of virus case law.
Disclaimer: The above-mentioned article is intended as general information only and not specific to anyone’s personal circumstances. The author is not a lawyer and this article should not be relied upon as legal advice.
Bronte Moore is a business journalist at Emerald Financial whilst also completing a JD at the University of Melbourne.
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