What happens if you catch COVID-19 at work? You could sue your boss

Workers compensation claims are expected to rise as COVID-19 restrictions ease and borders reopen, leaving businesses open to being sued by staff if they get sick at work. 

Key points:COVID-19 related workers compensation claims are expected to rise Lawyers say bosses could be sued if they don't provide a safe workplaceSmall business groups are concerned about mandating vaccines without a public health order 

In Australia since the pandemic began there have been around 3,000 COVID-19 related workers compensation claims, according to data obtained by the ABC from state and territory agencies. 

Sydney butcher Mark Stapleton is doing everything he can to protect his staff and customers from COVID-19.

Employees at Stapleton Family Meats must wear masks, be vaccinated, and sign a declaration form before each shift stating they have no coronavirus symptoms, and have not been in contact with any cases. Mr Stapleton also gets himself tested for COVID twice a week. 

"I want to protect my customers, and not only my staff but their families as well," he said.

It's working. So far, none of his staff have been infected with coronavirus. 

Mr Stapleton also wants to protect himself against legal action if one of his staff members were to get sick. 

"We have to be very stringent on our processes and our record keeping to show that we are providing a safe workplace."

In Australia, employers have a duty of care to maintain a safe workplace as far as is reasonably practicable. 

If an employee catches COVID-19 at work they can make a claim for workers compensation under their state based Work Cover schemes, which operates under a no-fault principle. 

But if a worker believed they had contracted COVID-19 because their employer was at fault, either deliberately or through negligence, they may be able to sue their boss in court for damages.

Giri Sivaraman
Lawyer Giri Sivaraman says employers should not rely on the absence of public health orders to protect themelves from getting sued if an employee gets COVID-19.(ABC News: Stephen Cavenagh )

Employment law principal at Maurice Blackburn Giri Sivaraman said he was not aware of any cases of a worker infected by COVID-19 suing their boss for negligence.

"The argument that worker might make is well, 'if you're [the employer] aware of the risks, and you knew that mandating the vaccination was an appropriate and reasonable way to manage that risk, and had you taken that step, I wouldn't have got COVID.'," said Mr Sivaraman. 

WorkSafe Victoria is looking into the death of 46-year-old Martin Blight who died from COVID-19 in September, after concerns were raised about unsafe practices at the Serco call centre in Melbourne.

In August, the Personal Injury Commission of New South Wales ordered the NSW workers compensation insurer iCare to pay $834,200 to the widow of a man who caught COVID-19 while on a business trip to the US and died.  

COVID-19 related workers compensation claims set to rise 

The two states hardest hit by the pandemic have recorded the highest number of workers compensation claims related to COVID.

In Victoria, the total cost of claims based on getting COVID-19 at work so far is $7.2 million, and the future estimated cost of these claims is $25.2 million. The cost of claims for other impacts of COVID-19 like mental and physical injury is $16.6 million and the estimated future cost is $78 million. There have been three accepted claims of death. 

New South Wales has paid out $7.8 million for COVID related workers compensation, with an expected gross cost of $15.6 million.

The highest number of claims in NSW have been in retail, public administration and safety, heath care and social assistance, accommodation and food services and transport.        

COVID workers compensation claims:NSW: 2,044 claims and notifications (1,469 confirmed diagnosis of COVID)Victoria: 1,298 claims (745 infected by COVID)Tasmania: 51 claims (infected by COVID)Queensland: 25 claims (infected by COVID)WA: 12 claims (5 infected by COVID)SA: 12 claimsACT: fewer than five claimsNT: no claims

In NSW, the estimated cost of workers compensation claims by people infected by COVID-19 is expected to soar to around $638 million in the 12 months after the state opens up, according to the State Insurance Regulatory Authority (SIRA). 

WorkSafe Victoria said it could not provide similar modelling at this time. 

Mr Sivaraman said there had been a lot of focus on whether a boss could mandate COVID jabs for staff, but not enough attention had been paid to what happened if they did not. 

"The absence of a public health order is not going to be enough to avoid liability, they'll have to show that they were aware of the risks and took the right measures," he said. 

"And what employer in Australia is going to be able to say we weren't aware of COVID and the risks it poses to us."

After SPC became the first company to mandate COVID vaccinations for its staff, supermarkets Woolworths, Coles, ALDI and big corporates like Deloitte and PwC have followed suit. 

Alexi Boyd
COSBOA chief executive Alexi Boyd says small businesses are concerned about work cover premiums going up. (ABC News: John Gunn)

Alexi Boyd, from Council of Small Business Organisations Australia (COSBOA) is worried her members will be hit with a rise in work cover premiums as millions are paid out to people off work because of COVID. 

Ms Boyd said COSBOA was also concerned about the issue of liability, but without public health orders in place employers faced a legal minefield. 

"When states implement the public health orders, it means that workplaces at small businesses have something that they know that they can just adhere to," she said. 

In Queensland, customers and staff will need to be fully vaccinated to attends pubs, clubs, cafes, restaurants, cinemas, theatres, music festivals and stadiums. 

Bernie Hogan, the chief executive of the Queensland Hotels Association, welcomed the new rules but said he was concerned about the possibility staff shortages as a result of the mandate. 

"We've also got to make sure that there is people available to work here in Queensland, because there's an enormous number of jobs available in Queensland and not an enormous number of people to take them," he said. 

Workers worried about returning to the office 

Sam Connor
Sam Connor from People With Disability Australia says the easing of restrictions for unvaccinated workers is worrying for people with disabilities, immunocompromised and those with chronic illness. (ABC News: Jon Kerr )

In New South Wales, restrictions for the unvaccinated will be eased when the state hits its 95 per cent vaccination target, which is expected on December 15. 

Sam Connor from People With Disability Australia said the relaxation of vaccine mandates was something that workers with disabilities, chronic illness and the immunocompromised, were not looking forward to. 

"Some people need to have a third jab as part of a primary dose, and they have not been able to access that yet. It's not necessarily safe for people in the same way that it is for other people," she said.

Like many of her colleagues interstate, Ms Connor has been working from home in Perth since the start of pandemic and would be reluctant to travel for work trips when borders reopen.

"What does that mean for the safety of people with disability who have the right to go to work in the workplace?" she asked.

"If we're talking about discrimination, what does it mean if you go to work, and you may possibly die, because you're going to be more at risk?"

Mr Sivaraman said workers who could demonstrate that their health would be at risk if they returned to the office or workplace might have legal grounds to change their working conditions. 

But he said the likelihood of other employees being able to do the same was slim. 

"I don't think you'd be able to refuse to work unless you show that there was some serious and imminent risk to your health," he said.

"That's going to be a pretty high bar to reach particularly if you are vaccinated, because the whole point of being vaccinated is that it diminishes the risk to you."

Mark Stapleton action shot
Employers like Mark Stapleton are concerned about the lifting of restrictions for unvaccinated people in New South Wales. (ABC News: John Gunn )

Back at Stapleton Family Meats, Mark Stapleton said protecting workers against COVID-19 should be a priority for business owners, even as restrictions ease. 

"It all comes back to a duty of care. So I think I'd be looking very carefully at it."

Posted 9 Nov 20219 Nov 2021Tue 9 Nov 2021 at 5:49pm, updated 9 Nov 20219 Nov 2021Tue 9 Nov 2021 at 7:54pmShareCopy linkFacebookTwitterArticle share optionsShare this onFacebookTwitterLinkedInSend this byEmailMessengerCopy linkWhatsApp

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