Will Employers be Liable for Staff who Contract COVID-19?

Where a worker contracts COVID-19 from exposure at the workplace, it is possible for employers to face liability for compensation.

As employees begin to return to work, it is important employers are aware of their health and safety obligations and the legal framework that accompanies these responsibilities so employees can protect both their workers and business.

Negligence Claims and Covid Exposure Liability

The duty of care owed by employers to employees is recognised in both statute and common law. Section 19 of the Work Health and Safety Act 2011 outlines this duty of care owed by employers conducting a business to “ensure the health and safety of their employees”.

This duty of care prevents employers from putting their employees at risk as part of the conduct of their business requires continual and comprehensive exercise of due diligence. Where employers do not exercise reasonable care to prevent a foreseeable injury, they will be exposed to potential liability for a negligence claim.

In the case of COVID-19, the Federal Government has outlined various safety measures for businesses to prevent the spread of COVID-19 and to provide a healthy and safe working environment. These include social distancing, good hygiene practices, cleaning and disinfected workplaces, signage to remind workers of COVID-19 risks and responsibilities and changes to the layout of the workplace.

Although an employer may be in breach of a duty of care by not following these guidelines, for the most part, employees who contract COVID-19 from their employment may not reach the serious injury threshold needed to commence proceedings. Furthermore, employees must be able to prove that the contraction of serious injury was a directly linked to the employer’s failure to prevent the spread of COVID-19.

In the alternative to claims against an employer in negligence, and employee who contracts COVID-19 at work may wish to make a worker’s compensation claim.

Workers Compensation Claims

If an employee can prove on the balance of probabilities that they have caught COVID-19 in connection with their employment, they may be eligible for weekly payments to cover medical and other related expenses through a worker’s compensation claim.

This is governed by section 9 of the NSW Workers Compensation Act 1987 which provides compensation for workers who receive an injury in the course of employment.

It is likely that the contraction of COVID-19 will be covered by this section as the definition of ‘injury’ in section 4 of this Act includes:

“a disease that is contracted by a worker in the course of employment”.

It is important to note that this will only apply where employment was the main contributing factor to contracting the disease.

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