COVID-19: Managing liability in planning a resumption of business operations

On Friday, 8 May 2020, the Commonwealth Government announced a three-step plan for the easing of COVID-19 related restrictions. Each of these stages will, subject to the ongoing application of social distancing restrictions and State and Territory requirements, permit businesses in different industries to resume operations, with some of the first businesses to open being those in the hospitality and retail sectors.

What will this mean for employers’ WHS obligations?

Businesses and their officers have duties under work health and safety law that extend to eliminating or otherwise minimising the risk of COVID-19 in the workplace, so far as reasonably practicable.

The scope of these duties and how they are likely to be viewed by safety regulators such as SafeWork NSW, Workplace Health and Safety QLD and Comcare is determined by, among other things, what is known about the risks of COVID-19 and how to manage them in a particular businesses industry. The guidance provided by various Governments is relevant in this regard.

The importance of COVID-19 specific risk assessments

In Rowson v Department of Justice & Ors [2020] VSC 236, a recent case concerning the risk of COVID-19 to inmates and workers at a prison, the Court found that, the evidence of a lack of appropriate hygiene in the prison together with the absence of a risk assessment being conducted in relation to the risk of COVID-19 to workers and inmates, meant there was a prima facie case that the Department of Justice had breached its duty of care to take reasonable care for the Plaintiff, exposing him to a risk of significant injury.

This case is an important reminder that, even where policies are developed by businesses to address the risks posed by COVID-19, that may not be sufficient to meet the strict duties imposed by WHS law.

Accordingly, businesses need to ensure that they assess the risks of COVID-19 in the workplace, identify controls and implement those controls. This is particularly important not only for businesses that have continued to operate through the recent Government enforced restrictions, but also for any business planning the return to the workplace of workers who have been working from home.

What should businesses be considering?

As a helpful starting point, both SafeWork NSW and Workplace Health and Safety QLD have issued brief guides (see the NSW guide here and QLD guide here) that provide general advice to businesses on the types of risks to safety that they can consider in risk assessments to minimise the spread of COVID-19 in the workplace, and also how they can be managed.

Likewise, SafeWork Australia have issued some general guidance on how businesses in specific industries can approach managing the risks posed by COVID-19 in the workplace.

We add to this that, while planning for the management of physical risks to workers’ health and safety are important, psychosocial hazards and related risks of psychological injury are equally important matters to consider in this climate.

How we can help

While the guidance provided by SafeWork Australia, SafeWork NSW and Workplace Health and Safety QLD is helpful, it is not specific to the nuances of employers’ individual operations. Even in a single industry, the way that businesses operate can differ. As a result, a ‘one-size fits all’ approach to managing WHS risks can be of limited effectiveness.

McCullough Robertson’s Employment Relations and Safety team has significant experience in advising businesses and their directors on the steps they can take to comply with their WHS obligations in various industries and environments, including in relation to the management of COVID-19 related risks and affected workforces.

For further information on any of the issues raised in this alert, please contact our Employment Relations and Safety team below.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.