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Can an Employee Who Contracts COVID-19 Sue?

Under Workers Compensation, we are aware that if an employee contracts COVID-19 and their case can be linked back to the workplace, the employee can be successful in their workcover submission.

However, what is of greater concern is the common law litigation that an employee may consider if an employer does not allow them to work from home, when work from home is feasible, and they contract COVID-19 in relevance to them being outside of the home for work.

Whilst an employer (and its insurer) will be responsible for costs such as loss of income, expenses and medical costs when found to be liable for work related injury or illness, it is yet to be tested as to how the various enforcement bodies will handle any spread of the virus through community at their own negligence.

It is important to continue respectful and thoughtful communication and consultation with your employees with your duty of care in mind at all times.

If it is at all feasible to arrange work from home, then do it.  If you can minimise employee's potential exposure by changing start and finish times, reducing the need for contact with others etc, then you should do this also.  Employers who refuse these types of arrangements when they are possible to do so, will find it difficult to defend a challenge.

The risk of exposure of any infected employee in the workplace is very high and the spread of the virus is extremely rapid. This has been evidenced in recent clusters.

At the very minimum, as an employer you need to set up work practices that adhere to the Chief Medical Officer guidelines around social distancing, safe handling, hygiene – personal and workplace, and any other guideline that is required or can be reasonably adhered to.

For assistance with flexible arrangements, please contact us at [email protected] or 1300 720 004.

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