Our sixth update considers an employer's common law liability in Queensland for a psychological injury, secondary to working from home or arising from a worker's concern of contracting COVID-19 upon being asked to return to the office.
The test for common law damages
As discussed in Part 5 of our COVID-19 series, 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 remotely.
In order for a worker to successfully claim damages at common law against an employer for a work related injury, the worker is required to demonstrate:
- A breach of the employer's duty of care. That being, a failure to take reasonable precautions to guard against foreseeable and significant risks of injury; and
- That the employer's breach of duty caused the injury.
Common law liability for employers
Claims for psychological injuries arising in the circumstances discussed above will turn heavily upon their own facts, but some of the relevant considerations which will likely arise in considering an employer's common law liability are:
- Under the common law, a person can only be liable in negligence for causing another person to suffer a recognised psychiatric injury. A person or employer will not be liable for merely causing emotional distress to a worker; Mount Isa Mines v Pusey  125 CLR 383. This would mean that stress regarding returning to the office, or loneliness as a result of working from home, would not be enough satisfy a court that a worker has sustained a psychiatric injury. A court would need to be satisfied that the worker has developed a recognised psychiatric condition, such as a depressive or anxiety disorder.
- Further, the injury must be one which is foreseeable to the employer. Although isolation due to working from home would probably be found to lead to a foreseeable risk of psychological injury, with the number of active cases of COVID-19 in Queensland now in the single figures and seemingly lessening each week, a court may find in many instances that the onset of a psychiatric injury as a result of returning to the office is not reasonably foreseeable.
- However, what is foreseeable to an employer may differ between workers. An employer may risk exposure to a common law claim if a worker has reported having difficulties with their current work situation, or is at an increased risk or vulnerability from contraction of COVID-19, and appropriate action is not taken to seek to support that worker. If a worker has reported difficulties with coping with working from home, or expressed concerns about their mental health, then an employer will have a duty to take appropriate steps to respond to the known risk.
- Even in circumstances where a worker has developed a psychiatric injury, it may prove difficult to establish a substantive link between the employment situation and the injury. In this regard, a number of other factors, including social isolation and social distancing measures practised outside of working from home requirements, may be found be primarily causal.
- A worker would need to demonstrate that the employer failed to take reasonable precautions. As discussed below, we expect that the adoption of published recommendations and guidelines, particularly in returning workers to the office and protective measures in place whilst they are there, will make it more likely for a court to find the employer had taken reasonable precautions.
What reasonable steps can an employer take to mitigate against the risk of psychiatric injury to workers?
In Part 4 of our COVID-19 series, we discussed some of the measures suggested by Safe Work Australia to be adopted by employers in order to ensure the mental health of their workers who are working from home in the current environment. These included:
- 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.
An employer can take a number of steps to guard against the risk of COVID-19 once workers start returning to workplaces from which they have been excluded due to the pandemic. Safe Work Australia provides guidelines regarding cleaning, responding to known cases in the workplace, implementing control measures in the workplace and the like. If a worker is concerned about contracting COVID-19 upon their return to the office, Safe Work Australia recommends the following steps to be taken:
- Talk to workers in order to understand their concerns, and once they are understood, putting measures in place to eliminate and manage those concerns;
- Educating and informing workers about the actual risks of catching COVID-19. In this regard, it should be noted that the number of active cases in Queensland are currently in the low single digits;
- Reminding workers about the services that are available to them for support.
Although not outlined by Safe Work Australia, another option which employers are exploring is allowing workers to have the option of returning to the office only once, and to the extent, they elect to do so. By giving workers an option, this is likely to alleviate stressors on workers who have a fear of contracting the virus.
Exposure to common law claims for employers in Queensland for COVID-19 related psychological injuries will depend upon the circumstances of each case, but employers are advised to adhere stringently to government guidelines and to take additional appropriate measures where it becomes known a worker has a particular issue or vulnerability.
With a return to the office appearing to be imminent, now would be a good time for employers to make the necessary arrangements to make the workplace as safe as possible, and ensure that its workers are comfortable with their return to work, or offered alternative arrangements or assurances where they are are apprehensive out of fears of contracting COVID-19.