COVID-19 Duty of Care Update
COVID-19 sits under the WHS law for duty of care and the industrial manslaughter law should that duty fail resulting in death. Although it may not seem to be an obvious relationship, there is a direct connection between response to the COVID-19 pandemic and reckless conduct laws. Regardless of the risk to health, safety and welfare, employers have a duty of care under the WHS Act. That’s always been the case and COVID-19 is no different. If that duty fails and there is an avoidable workplace death, only then does the Industrial Manslaughter Act become relevant. So if you ‘do the right thing’ then the Industrial Manslaughter Act will never apply.
So how do the WHS and industrial manslaughter laws impact on employer responsibilities regarding COVID-19?
WHS Act – duty of care applies:
The WHS Act describes how you meet your duty of care. The WHS Act requires COVID-19 to be treated like every other hazard. Like all workplace safety hazards, the risk of contracting COVID-19 must be risk assessed, eliminated or controlled where if it cannot be eliminated. Obviously COVID-19 cannot be eliminated. Although there are state and territorial differences, the basic premise is the same. An employer must conduct an informed risk assessment in consultation with stakeholders and implement agreed controls based on what is reasonably practicable and mandated by law.
Check whether your workplace exposes or is likely to expose staff to COVID-19:
Implement your duty of care by first risk assessing your workplace for COVID-19 exposure and then prepare a COVID-19 plan.
It is well known that COVID-19 presents as a highly contagious and potentially deadly virus therefore accept the risk as high or more severe depending on the nature of the working environment.
Review health department and other government directives and ensure processes are in place to comply with these.
Engage your workforce and other stakeholders in proactive measures to mitigate COVID-19 risk as far as is practicable.
Make your workplace employees aware of the workplace risks, directives and processes – ensure they are followed.
Also consider whether employees undertake social activities or second jobs that could pose a risk of introducing COVID-19 to your workplace? Examples could include second jobs, car-pooling, job sharing, living in shared accommodation.
Monitor the COVID-19 plan as the pandemic progresses:
Hygiene controls – sanitised cleaning and other agreed methods.
Monitor employee health – temperature checks, signs of illness to prevent unwell persons attending the workplace.
Enforce social distancing and other agreed arrangements.
As distinct from industrial manslaughter laws, prosecution under existing WHS laws can still arise where the employer has failed to ‘take all reasonably practicable steps’ to minimise risks to safety and these offences can arise even without the ‘deliberate’ elements that characterise the manslaughter laws. This could be the case with mass COVID-19 outbreak, not resulting in death, where insufficient risk assessment and controls have been implemented.
Industrial manslaughter – only applies if your duty of care has recklessly failed:
The Industrial Manslaughter Act is basically the ‘punishment/penalty act’. Industrial manslaughter occurs where a person (including corporation, but not including an employee), who owes a duty of care, breaches that duty by criminal negligence in circumstances where there was a high risk of death, serious injury or illness, the breach was done consciously and voluntarily and that breach causes death.
Employers that do not take the appropriate steps to protect their staff from COVID-19, which results in the death of staff, could face the maximum penalties of up to 20 years jail and $16.5 million in fines.
COVID-19 deaths fall under industrial manslaughter laws only if negligence and/or reckless endangerment has occurred resulting in a death or deaths. This would likely be a mass COVID-19 outbreak where no risk assessment nor genuine efforts to manage COVID-19 infection control has occurred. An intentional breach of state COVID-19 government directions such as failure to instigate social distancing or failure to observe lockdown laws result in an outbreak and death could also be considered industrial manslaughter.
It is unlikely that an organisation that has made a good faith attempt to manage COVID-19 risks would face a manslaughter charge. If you have concerns, please reach out to us to discuss support available through our professional services.