Our fifth update considers the question of whether an employer in Queensland will be liable to pay damages at common law for contraction of COVID-19 by a worker.
In particular, we look at common law liability for the contraction of COVID-19 by a worker upon attending at, or returning to, work or whilst working from home.
We will, in a later alert, consider an employer’s common law liability for any secondary condition, such as a psychological injury arising from fear of contraction of COVID-19.
The test for common law damages
An employer owes a duty of care to an employed worker to provide a safe place of work. It is uncontroversial that an employer's duty to provide a safe place of work extends to circumstances where the worker is working from home.
In order for a worker to successfully claim for damages at common law against an employer for a workplace injury, the worker is required to demonstrate:
- A breach of the employer's duty of care. That is, a failure to take reasonable precautions to guard against foreseeable and significant risks of injury.
- That the employer's breach of duty caused the injury.
Common law liability for employers
Whilst in the current climate a COVID-19 injury would be considered a foreseeable and not insignificant risk, we do not expect a significant common law COVID-19 exposure for employers in Queensland because:
- Firstly, with the number of active cases in Queensland currently in the single digits, the chances of a worker coming in contact with a person carrying the virus in general is highly unlikely, let alone as a result of their employment.
- Secondly, with many workers isolated and working from home, the risk diminishes even further.
- Thirdly, even if a worker does contract COVID-19, they may struggle to specifically prove that they had contact with an active case through their employment. It is, of course, open to a Court to conclude that a novel virus was caused by employment in the absence of any other potential cause, but where contraction occurs in the home a direct causal link between damage and work will be very difficult to establish.
- Fourthly, even if a worker could prove contraction through employment, liability is not strict. The worker would still need to demonstrate that the employer failed to take reasonable precautions. As discussed below, we expect that adoption of published governmental recommendations will go a long way towards establishing that an employer has taken reasonable precautions.
- The basis for a common law action is quantifiable damage. Given that the vast majority of COVID-19 sufferers are expected to make a full recovery, in most cases there may not be sufficient quantum of damages flowing from contraction to warrant a common law claim.
What can employers do to mitigate against potential common law liability?
Given the unprecedented nature of the current pandemic, coupled with the fact that there have not yet been any litigated common law claims against employers for the contraction of COVID-19, we expect that what a court might consider as reasonable steps to be taken to avoid liability would reflect adoption of Government guidelines to prevent the spread of the virus.
To this effect, Safe Work Queensland has published preventative measures to avoid the spread of infection at work. Some measures employers can take are:
- Providing hand washing facilities and make sure these are kept clean, properly stocked and in good working order;
- Providing soap or alcohol based hand sanitizers;
- Promote good hygiene practices, for example, by displaying hand hygiene posters;
- Keeping the workplace and worker's individual work spaces clean and hygienic by ensuing they are regularly cleaned including the cleaning of high touch surfaces;
- If someone displays or complains of respiratory symptoms, send them home to isolate and ask them to seek medical assistance.
In addition to these measures, it would also be advisable for employers to ensure appropriate social distancing via measures such as:
- Avoiding having multiple workers in the same building entering the lift at one time;
- Avoiding large gatherings of people in confined areas of the office, such as meeting rooms and board rooms, at one time.
Where does the risk lie for employers?
We consider that it would be difficult for a worker to establish that an employer is liable for their contraction of COVID-19 whilst working from home, or upon returning to the office, if the employer adheres to safe work guidelines.
The situation might be different where, for example:
- A worker has a particular vulnerability which is known to the employer, and for whom general precautions are known, or ought to be known, to be insufficient;
- The worker has been asked to perform a task outside of their home or office (e.g. visiting clients or attending conferences or interviews), and it can be established that they contracted the virus in the course of performing these work duties. In these circumstances, an employer is best advised to ensure that places their employees visit in the course of work are also adhering to safe work guidelines;
- Employers, particularly in larger workplaces, decide to rush workers back into the office prior to the Government specifically saying that it is safe to do so.
Could a finding of contributory negligence be made against a worker?
In the unlikely situation where a worker does contract the virus as a result of their employment and a Court were to find the employer liable, a finding of contributory negligence may be made against the worker.
It should be noted that social distancing measures and recommended hygiene practices and guidelines to prevent the spread of COVID-19 are widely publicised. If a worker has failed to abide by these and the worker's own failure has also caused the injury, a Court may consider that a worker has to some extent contributed to their contracting of the virus through their own negligent behaviour.
Conclusion
It should be noted that with the amount of active infections throughout Queensland now minimal, and community transmissions of COVID-19 reducing, the risks of an employee contracting COVID-19 are few and far between. If an employer adopts all of the relevant guidelines and measures promoted by the Government upon having worker's return to the office, then in most cases we expect it will be difficult for a worker to establish that a breach of common law duty has occurred.