Business groups ‘fearful’ workplaces will be liable if an employee contracts COVID-19 on the job

Australia’s coronavirus vaccine rollout has begun, and small business groups are already concerned that workplaces will be liable for staff who contract the virus on-site.

Updated vaccine guidelines for workplaces were released on Friday by the Fair Work Ombudsman and Safe Work Australia, providing information about employers’ obligations and how to manage the risks associated with COVID-19.

While employers cannot legally mandate their employees to get a vaccine, they do have an obligation to eliminate or minimise the risk of exposure to COVID-19 in the workplace, according to the guidelines.

However, small business groups are concerned that under work health and safety law, workers could be entitled to workers’ compensation if they contract COVID-19 while at work.

“That’s the fear that we’ve got,” chief executive of Council for Small Business Organisations Australia (COSBOA) Peter Strong says.

Strong says while COSBOA is in discussions with Safe Work Australia about employers’ legal obligations in relation to COVID-19, there is still a lot employer groups do not know at this stage.

Not all insurance policies would pay out compensation to a worker who contracted coronavirus in the workplace, Strong says.

“We’re still going through a big learning curve on which insurance is worthwhile,” he says.

“Hopefully COVID-19 will stay away and won’t be a problem, but I assume there will end up being a test case.”

The guidelines explicitly state that vaccines have not been made mandatory in any industry.

“There are currently no laws or public health orders in Australia that specifically enable employers to require their employees to be vaccinated against COVID-19,” the guidelines state.

Safe Work Australia acknowledges that workplaces may not be able to completely eliminate the risk of workers being exposed to COVID-19 while carrying out work.

However, under work health and safety law, workplaces must minimise the risk of exposure to COVID-19 by applying a range of control measures, from physical distancing to regular cleaning, as well as ensuring workers do not attend work if they are unwell.

It is unlikely workers will be able to refuse work if a colleague is not vaccinated, according Safe Work Australia, although this depends on the circumstances of each case.

Strong says although it is unlikely workers could refuse to attend work because a team member is not vaccinated, it is still “very concerning” for COSBOA’s members.

“We’re also concerned about the fact that only the courts know what the law means or can interpret it, especially around COVID-19,” he says.

Safe Work Australia encourages any businesses considering a vaccination policy or program to seek advice from the Workplace Health and Safety regulator, the Fair Work Ombudsman, employer organisations and other legal services.

The release of vaccine guidelines for workplaces comes after Prime Minister Scott Morrison, aged care residents, critical aged care staff and frontline workers on Sunday received the first doses of the Pfizer vaccine in Australia.

Meanwhile, shipments of the vaccine arrived in Victoria, South Australia, Queensland and Western Australia over the weekend in preparation for thousands of doses to be administered in the first phase of the rollout.