With the mandatory shut down of offices and workers being required to work from home, new risks have arisen associated with workers developing psychiatric symptoms that may go undetected by employers.
The fourth update in our series focuses on the exposure for employers and insurers in Queensland in relation to claims for compensation by workers sustaining psychiatric injuries during the COVID-19 pandemic.
What might cause a psychiatric injury in the current environment?
For a number of workers, the COVID-19 pandemic has forced them to work from home for the first time, or has forced them to do so for a prolonged period for the first time.
Working from home can have implications on the mental well-being of workers. In particular, the implications of working from home may cause added stress on workers, as well as the potential for the development of psychiatric injuries such as depression.
The cause of such conditions in the current environment may include:
- Being isolated from their colleagues and having limited social interaction;
- Having difficulty staying motivated;
- Being unable to switch off from work; and
- Feeling uncertain and being unable to monitor one's progress.
Another risk that may be borne in mind is the risk of workers sustaining a psychiatric injury upon their return to work. It may be the case that some workers will be apprehensive about returning to the office out of fear that they may contract COVID-19.
Guidelines in place to support workers
One of the key issues facing employers is that, in the current circumstances, a worker's development of psychiatric symptoms can easily go undetected. In this regard, Safe Work Australia has provided some guidelines and steps for employers to ensure the psychiatric health and safety of their workers. Some steps that employers are advised to take where reasonably practicable include:
- Providing information about mental health and other support services available to workers;
- Maintaining regular contact with workers and encouraging workers to stay in contact with each other;
- Acknowledging that some workers may have carer's obligations, and offering them flexibility with their work hours;
- Ensuring that workers are effectively disengaging and logging off from their work at the end of each day;
- Keeping an eye out and responding appropriately to signs a worker may be struggling;
- Informing workers of their entitlements if they become unfit to work or have carer's responsibilities; and
- Providing workers with a point of contact to discuss their concerns and issues.
Are workers entitled to claim for psychiatric injuries sustained whilst working from home?
In Part 2 of our series, we looked at entitlement to compensation for physical injuries sustained whilst working from home, and noted the circumstances in which such entitlement might arise. As we noted, in most cases, if a worker is authorised by the employer to work from home and is injured whilst undertaking their employment duties at home, the legislative tests will be satisfied.
Similarly, if a worker develops psychiatric symptoms because of stressors arising from their working from home arrangements, it is more than likely that the legislative test in section 32(1) of the Workers' Compensation and Rehabilitation Act 2003 (WCRA) will also be satisfied.
However, there are additional statutory considerations referable specifically to the entitlement to compensation for psychiatric injuries. Those are contained in section 32(5) of the WCRA, which relevantly provides:
Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—
(a) reasonable management action taken in a reasonable way by the employer
in connection with the worker's employment;
(b) the worker's expectation or perception of reasonable management action
being taken against the worker …
The individual requirements of section 32(5) would need to be considered on a case by case basis as to whether they have application. However, we expect that this provision will require close consideration in any claims made referable to psychiatric injuries arising out of directives around work location, and may operate to exclude many claims.
Some general observations are:
- In most cases, we expect that a requirement to work from home (to the extent it is a causal stressor) would be considered 'management action' as it relates to the management of a worker's employment, rather than a worker's day to day and incidental tasks (see Gilmour v Workers' Compensation Regulator [2019] QIRC 22).
- Due to the Government guidelines relating to social distancing and the like, it is likely that in most cases having workers work from home and the subsequent shift back into the office, will fall within the meaning of 'reasonable management action'.
- However, whether this management action has been taken in a 'reasonable way', which is an additional requirement of section 32(5)(a), will largely hinge on an employer's adherence to safe work and Government guidelines, and also taking into account the particular circumstances of the worker involved. What may be reasonable for one worker, may not be for another (such as those with compromised immunity, past psychological issues, etc).
- It is worthwhile noting that the response to the pandemic is unprecedented, and management action will sometimes be reactive. Management action need only be reasonable, it does not need to be perfect (see Thiess Pty Ltd v Simon Blackwood [2015] QIRC 39).
- Further, upon returning to the office, it is important that an employer adheres to Government recommendations and guidelines pertaining to social distancing practices and measures to minimise the risk of contracting COVID-19.
References
We note that there are currently multiple published resources for employers and insurers on the topic of mental health and COVID-19, including the following:
- Safe Work Australia has published guidance for managing the mental health risks arising out of the COVID-19 crisis here
- Workplace Health and Safety Queensland has also published guidance on managing anxiety and stress for workers in the COVID-19 pandemic here
- The Queensland Mental Health Commission has published information here