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Are you legally liable if workers catch COVID-19?
Workers who contract coronavirus may be able to pursue workers’ compensation claims, argues one lawyer.
Jerome Doraisamy
According to Bennett & Philp Lawyers director Trent Johnson, those working from home during the ongoing pandemic and contract the virus should not operate under the assumption that they are automatically guaranteed cover by way of compensation.
Mr Johnson said that as Australia goes on to a “near-war footing to deal with the coronavirus pandemic”, the rule book governing workplace health and safety liability is being rewritten.
“Businesses are now implementing contingency plans to have staff work from home to minimise virus exposure. Telstra has told thousands of employees to work from home until at least the end of March. Other companies are doing the same. This has shone a light on workplace safety issues and who – if anyone – would be liable if a person working from home suffered an injury,” his firm noted in a statement.
While employers have a responsibility for ensuring a safe work environment, Mr Johnson continued, the urgency of coronavirus precautions may mean they cannot physically inspect home work environments. It is likely, he said, that staff would be asked to ensure their work from home set-ups are safe.
“If a worker was injured at home, such as falling down stairs or contracting a virus, the workers’ compensation legislation varies from state to state. Queensland law states you can claim compensation for a disease sustained during the course of employment, whether this is at or away from the workplace, but employment has to be a significant contributing factor to the disease.
“This is where it may get complicated because proving someone is entitled to WorkCover because they’ve caught the coronavirus may be difficult. You’d need to show the virus was contracted during a person’s work time, but how do you separate that from private time if they are working from home during a coronavirus workplace shutdown?”
Another complication, Mr Johnson added, is the severity of the effect on individuals, as some people have only a mild case of the sniffles, others require hospital treatment while elderly and immune-compromised people could face life or death from the virus.
“Those who are fortunate to only get a very mild reaction to the virus won’t be able to claim any meaningful workers’ compensation,” he said.
“But people whose job involves close contact with coronavirus patients, such as nurses and other health workers, may have a stronger claim as they could well argue their job exposed them to a greater risk of contracting the virus.”
Common law claims may be possible, he mused, if a worker could prove an employer was negligent and ignored safety measures and caused the worker to catch the virus.
In these instances, Mr Johnson hypothesised, claims could cover compensation for pain and suffering, loss of wages and medical costs where applicable.
“Our compensation system is built around permanent or long-term consequences of an injury, but coronavirus seems to be a fairly fast illness for those only suffering mild symptoms. As such it’s not expected to be a source of significant claims,” he said.
“However, there may be exceptions – especially if someone dies or suffers permanent impairment due to the negligence of their employer. In these cases, you’re likely to see some common law negligence claims lodged in the coming months.”
Jerome Doraisamy
Jerome Doraisamy is the editor of Lawyers Weekly. A former lawyer, he has worked at Momentum Media as a journalist on Lawyers Weekly since February 2018, and has served as editor since March 2022. He is also the host of all five shows under The Lawyers Weekly Podcast Network, and has overseen the brand's audio medium growth from 4,000 downloads per month to over 60,000 downloads per month, making The Lawyers Weekly Show the most popular industry-specific podcast in Australia. Jerome is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, and a board director of Minds Count.
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