EMPLOYERS having a COVID-19 outbreak in their workplaces can expect health and safety regulators to increasingly adopt an “enforcement-first mentality”, according to John Makris and Dominic Fleeton, partners at workplace law firm Kingston Reid.

“To date, regulators have primarily focussed on giving employers guidance about the measures they can implement to minimise the risk of employees contracting COVID-19 at work or introducing it into the workplace,” Mr Makris said.

“But expect that regulatory approach to change with the realisation that COVID-19 will be a key health risk for months, if not years, so employers will potentially be held responsible for outbreaks in their workplaces in the same way they are now for other health and safety breaches.

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Mr Fleeton said the focus of regulators’ investigative activities would not be limited to employing entities and would almost certainly include scrutiny of any business decision-maker who failed to discharge their statutory safety duties.

Mr Fleeton said regulators were indicating already any workplace that experienced an outbreak of COVID-19 could expect to become the focus of investigative activity.

“That certainly appears to be the intention of the Victorian government that recently implemented regulations stating WorkSafe Victoria needs to be notified about some confirmed COVID-19 cases involving employees and independent contractors,” he said.

According to Kingston Reed, at a minimum, people in such positions of authority, influence and decision making would need to be able to demonstrate that their approach was commensurate with the real risks created by this disease. This included being able to identify:

  • Key aspects of the business that COVID-19 is impacting;
  • Risks to the safety of workers and others due to the pandemic;
  • Measures that the business has implemented to minimise the risk of COVID-19 being introduced into the workplace;
  • Measures in place to swiftly respond to workers being identified as close contacts of people who have contracted COVID-19, or being suspected or confirmed cases themselves; and
  • Resources deployed to ensure that the processes are monitored and enforced.

“The work many organisations have done will present a positive picture of genuine attempts to comply with the law and keep employees safe. But for those who are found wanting, the consequences could be dire,” Mr Makris said.

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