Work Health Safety Law and Covid-19
Does individual responsibility mean that nobody has responsibility?
Governments in Australia have stopped almost all public health measures related to the current Covid-19 pandemic, even case numbers are not being reported in many states. The responsibility for Covid-19 pandemic related public health has shifted to the individual. Individual responsibility is probably not the go-to concept in public health textbooks, however it is where we are.
News media is still covering the pandemic, informing the citizens of this huge public interest issue. For example this article in August 2023 reports that a new mum is calling for hospitals to put in place basic infection control policies so that newborn babies don’t catch covid in their first few days of life. Are newborns meant to take personal responsibility?
We have known for years that people with disability are being killed by Covid-19 at a much higher rate than people without disabilities. People with disabilities have not been silent on this issue either.
So does individual responsibility mean that we can all just do what we like? Ask any random person next time you’re having beers in the pub, they’ll probably be surprised that Covid-19 still exists. Are they actively suppressing their knowledge of the pandemic? Ignoring the 3rd leading cause of death in 2022, which continues to kill in large numbers? Is this an unconscious strategy to avoid their individual responsibility?
Before looking at law, what are some facts and lessons learned from the first three or so years of the pandemic?
Getting infected does not give you immunity.
Kids are seriously affected by covid infections with increased risk of diabetes and other “long covid” illnesses.
You are infectious before you develop symptoms.
Sperm production is destroyed by even “mild cases” of Covid-19.
We shouldn’t cough in other people’s faces.
10% of infections result in chronic illness and the risk increases with each infection.
What’s WHS Law got to do with anything?
Under WHS law, all employers or businesses are required to manage the risks of exposure and transmission of COVID-19 to workers and others in the workplace. Understanding the risks seems like a good first step with this. Is your boss aware of the above facts? COVID-19 must be managed by using a risk management approach to eliminate and/or minimise the risks in the workplace so far as is reasonably practicable. HEPA filters minimise risk of covid spread. They are also very practicable as they are able to be installed in existing ventilation systems, or portable units can be used where windows can’t be opened. Australian made P2 respirators are effective, comfortable, and practicable. Surgical masks are not comfortable, less effective, and not practicable as they are not designed for diseases transmitted via air.
Employers must review and, if necessary, update risk assessments in consultation with workers and/or their health and safety representatives to determine the level of risk of covid-19 exposure in the workplace and ensure that the control measures implemented to manage COVID-19 risks are effective.
Employers are expected to notify SafeWork NSW when a worker has contracted Covid-19 at the workplace that has required hospitalisation, or has resulted in a fatality. But Covid-19 is everywhere! How can you prove that you caught it at work? Well, for high-risk jobs, such as teachers and retail workers, the onus is on the employer to prove that the employee didn’t get Covid-19 while working.
Workers Compensation Law and Covid-19
Section 19B of the Workers Compensation Act 1987 (NSW) outlays presumptions relating to certain employment in relation to COVID-19.
If a worker, during a time when the worker is engaged in prescribed employment, contracts the disease Covid-19, then for the purposes of the Act, it is presumed (unless the contrary is established) that the disease was contracted by the worker in the course of the employment.
Prescribed employment means employment in any of the following:
Public Health Act (NSW) 2010
Did you know that it is illegal to go in public in NSW while you are infected with Covid-19 without wearing a P2 respirator? At least that is my interpretation of the law. Surely wearing a proper mask is reasonable.
Section 52 (1) says that “a person who has a Category 2, 3, 4, or 5 condition, and is in a public space, must not fail to take reasonable precautions against spreading the condition. Maximum penalty — 100 penalty units or imprisonment for 6 months, or both.”
Covid-19 is a Category 3 condition alongside anthrax, cholera, leprosy, smallpox, and many others.
So, as well as asking our MPs to put the public back in Public Health Policy, what can we do to reduce unnecessary sickness and death? At our workplace or at our next social event we can get inspiration from the NSW Government’s nice checklist. Here are some highlights:
Use outdoor areas where possible.
Open windows and doors to increase natural ventilation in indoor areas.
Optimise ventilation systems (for example, maximise the intake of outside air, avoid recirculation of air, and consult an expert).
Encourage or request the use of face masks where it is difficult to maintain physical distance.
Exclude people who are unwell.
I hope it is obvious, but just to be sure, none of what I write here is legal advice. Hopefully it was mildly informative.
For more information on the scientific research on Covid-19 click here.
By Chris Hall