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Employer's growing responsibilities for COVID19 related deaths at work

As we start returning to 'Covid19 normal', our customers are assessing the new risks related to Covid19 in their businesses. As employers, many of our clients are grappling with their responsibilities and what they may be liable for. Below are some questions being asked. We recommend our clients consider these and update their Covid Safe Plans to address these considerations as staff movement opens back up.

  • If someone comes onto my site with Covid19 symptoms or they are unvaccinated, do I have to deep clean the site? Can I ask them for the test results?

  • If my staff go onto a client-controlled site and contract Covid19, am I liable?

  • Will the tests from the supermarkets be considered suitable by WorkSafe?

  • Can I mandate contractors to use rapid COVID-19 Self-Tests? Who pays for these?

Two real-world case studies are now playing out in the spotlight that might help us garnish some answers as we navigate this new normal, and wait for legislation to catch up.

Case 1 - NSW employer found liable for COVID-19 death at work

Our clients are weary that as we open up there is "the potential to open the floodgates for workers compensation claims, work health and safety breaches and other legal liabilities. The recent Sara v G & S Sara case is a perfect example of this. The NSW Personal Injury Commission recently ordered a NSW employer’s insurance provider to pay over $830,000 to the widow of an employee who died from COVID-19 – with millions more in medical bills currently being assessed."

As well as insurance costs, there are real world WorkCover costs that employers may be liable for. Every case can impact your premium costs for up to 6 years, meaning that every case can have a long tail financial impact on your business. The HRM article states from the start of the pandemic to now "there have been almost 1600 COVID-19-related workers claims in NSW alone, with an expected gross cost of almost $14 million for 2021. In addition, and more alarming, is that it is predicted that claims under the NSW workers compensation regime will balloon to $638 million in the next 12 months."

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Case 2 - VIC WorkSafe lay charges over hotel quarantine

"The Department of Health has been charged with 17 breaches of Section 21(1) of the OHS Act, in that it failed to provide and maintain, as far as reasonably practicable, a working environment that was safe and without risks to health for its employees."

All employers and places of work in Victoria are subject to this legal obligation.

WorkSafe alleges that insufficient training, protective equipment and instruction on how to safely use PPE were provided. They have confirmed "a number of other investigations relating to the control of COVID-19 related risks in workplaces remain ongoing."

Covid19 is being treated as a hazard for you to protect your workers from, similar to exposure to asbestos, noise, and sun damage. Are you managing this hazard appropriately?

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What should you do?

  • Ensure you have strong safety practices in place, including strong consultation and communication processes with your staff to ensure you understand all of their activities, risks, concerns and potential exposures.

  • Talk to your industry group or seek professional legal advice. Peak bodies are working hard to guide their members that are specific to their kind of work.

  • Talk to your state's Covid19 and WorkSafe regulators, ask them about any risks or issues you are not sure about.

  • KEEP LOTS OF RECORDS! of consultation, updates, policies, communications.

  • Put in place lots of controls including physical controls, vaccination policies, ventilation systems, testing regimes to minimise the exposure risk to your employees.

  • Remain diligent, keep up to date with changes, suggestions, and best practices.

The ISO 45001 standard provides the framework for you to develop a system that helps you meet all of these suggested steps, following the Plan-Do-Check-Act process.

Please feel free to call us on 0488 225 445 or email us at to discuss how we may be able to help you on your compliance or certification journey.

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