Below is a summary of an article by Aaron Goonrey, Partner, and Mayomi Kondasinghe, Graduate, Lander & Rogers
At the heart of the issue is an employer’s legal obligation to ensure the health and safety of its employees.
COVID-19 is a risk to health and safety in the workplace, which employers are required to manage.
Work/Occupational Health & Safety obligations
The NSW Personal Injury Commission recently published a decision in which an employer was held to be liable for an employee’s COVID-19-related death. The decision demonstrates that employers may be liable where an employee contracts COVID-19 at work.
Employers must ensure the health and safety of their workers, so far as is reasonably practicable. This includes taking steps to eliminate or minimise the risks associated with the transmission of COVID-19 in the workplace.
State governments in Australia have already begun directing workers in certain industries to be vaccinated to continue working where it is not practical to work from home.
In that respect, the NSW Supreme Court very recently dismissed proceedings in which individuals sought that the Court declare the NSW public health orders mandating vaccines for certain workers unconstitutional and unreasonable.
Based on statistics, COVID-19 vaccines may be considered one of the highest-order risk control measures, and one that significantly reduces the risk of hospitalisation.
If you are not yet decided on whether the COVID-19 vaccine is your solution, you will need to thoroughly consider other control measures.
We recommend, at a minimum, the following measures.
• Implement a COVID-19 safety plan – Employees should be familiar with the plan and it should be regularly circulated among the workforce and to visitors to the workplace.
• Consider a vaccination policy for workers returning to the workplace – we recommend that employers apply a reasonable and appropriate vaccination policy, which captures the possible ongoing need to maintain full vaccination status and takes into account waning vaccine effectiveness.
• Physical controls – The continued implementation of physical distancing through varied office fit-outs, modified start and finish times, avoiding overcrowding in shared spaces, mask wearing in appropriate circumstances and providing appropriate hygiene equipment and instructions
• Ventilation systems – There is growing evidence of the importance and effectiveness of ventilation and air purification in reducing the spread of COVID-19.
• Ongoing monitoring and adapting
Ultimately, as an employer, it is important to either eliminate the risk of COVID-19 in the workplace or, if that is unachievable, minimise exposure to it in order to discharge obligations under work/occupational health and safety legislation.
Although some may consider it extreme, the implementation of a COVID-19 vaccine mandate may be considered an effective method to do so.
Click the link below to read further on “Working around COVID: Avoiding COVID and avoiding liability” from Lander and Rogers
Aaron Goonrey, Partner, and Mayomi Kondasinghe, Graduate, Lander & Rogers
