Employers could face a potential lawsuit if their employees catch Covid-19 in the workplace, a legal expert has revealed.
Principal of Danny King Legal and formerly UNSW Law, Danny King, told UNSW that there are two issues to consider when looking at whether employers are liable for Covid-19 contraction in the workplace: workers’ compensation and duty of care.
“Duty of care issue is a massive issue generally, but in this particular case, it’s the whole concept of vicarious liability for not enacting a checklist in a pandemic situation where the protocols and procedures to deal with are changing rapidly,” James Boddam-Whetham, CEO of crisis and disruption management firm Noggin told Yahoo Finance.
“Let’s take the conventional wisdom on things like masks – a lot of countries are taking the standard that where you need to wear masks. If you take that into the workforce, do you have the ability to be able to access that equipment?” Boddam-Whetham said.
“A lot of workplaces will probably not return to work until they’re clear on their duty of care position, and they’re clear that they have protocols and procedures that aren’t going to leave them or their workers exposed to that.”
But if you are back at work, according to King, the bottom line is that if the contraction is the fault of the employer, then just like any other workplace injury, the employer and its insurer will potentially be liable for the employee’s loss of income and medical expenses.
“However, employers should not rest easy on that account as we are yet to see the way law enforcement bodies will deal with those that cause the illness to spread in the community through their own negligence,” King said.
And if your boss isn’t letting you work from home, when it’s entirely viable to do so, a defence is even tougher.
“The risk of exposure of any infected staff member within a workplace is very high, and as we have seen with the recent clusters, the spread happens very quickly indeed, leading to these risks.”
And a link doesn’t necessarily need to be established to the workplace itself, she said.
On the flip side, if an employee isn’t compliant with a workplace’s protocols, they “run their own risk”.
“Currently, the question is whether it is either reasonable or lawful to direct an employee to work in an office during a pandemic context like this, such as to trigger consequences where an employee refuses to comply.”
King expects several cases of unfair dismissal, general protection claims and breach of contract cases in the coming weeks and months.
Her advice to employers? “Go gently.”
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