COVID-19: Employers face litigation for risking employee safety

Australian workplace health and safety laws place obligations on employers to do everything that is reasonably practicable to eliminate the risk of a worker contracting COVID-19. This includes ensuring that any PPE provided (such as face coverings, masks and so on) to staff meets Australian Standards. However, two industry experts believe that employers across the country are facing years of litigation and crippling law suits for putting the health and welfare of their staff at risk by providing inferior face masks and sanitiser and not giving them adequate training in the use of these products. Scott Huntsman, founder and CEO of All Cast PPE, said employers who put their staff in a position where they are exposed to the risk of contracting COVID-19 should be sued for damages.

“I have heard businesses say that they will get their masks from China because they are a few cents cheaper than buying them from an Australian manufacturer. The only masks that will provide maximum protection from the spread of communicable diseases like COVID are those that are manufactured to Level 3 standards as set by the Australian Therapeutic Agency. The Australian Register of Therapeutic Goods lists these products. Our masks are listed on the register. Up to 80% of the face masks sold in the Australian market space are fakes and inferior and won’t protect you from anything,” Huntsman said.

Huntsman added that employers who are prepared to put their staff at risk by providing cheap masks to wear are making a big mistake and workers will be able to sue for damages. Workers and businesses in Victoria have already commenced class action against the Victorian Government for negligence associated with the management of hotel quarantine. “If a worker is in a front line position wearing a mask provided by the employer contracts COVID because the mask did not prevent the infection then the business is to blame. A business can and should take all reasonable precautions to protect workers and this includes providing staff with adequate masks. A saving of a few cents here can lead to millions in financial devastation elsewhere,” Huntsman said.

Carrie Peterson, founder and principal of Peterson Haines, added that since the start of the pandemic, there has been an unprecedented rise in the number of clients conducting risk assessments and re-evaluating their processes to eliminate the risk of spread of the disease in the workplace. “Employers are beginning to understand that their WHS obligations go beyond removing a ‘trip hazard’; they extend to ensuring the implementation (and regular review) of practices to minimise the spread of COVID-19 to protect their employees,” Peterson said.

Peterson acknowledged that if there is no supply of masks that comply with the standards set by the TGA, then the employer could arrange alternative measures (such as sub-standard masks). Peterson cautioned that there is a real danger of employers being tempted to save a few dollars by purchasing masks that are not up to standard. “What they fail to understand is that by doing so, they could be exposing themselves to breaches of the WHS laws because such an act is not doing everything reasonably practicable to protect their employees. It is extraordinary to me that employers would risk exposing themselves to possible criminal sanctions, and more importantly, exposing their staff simply to save a few dollars. Considering staff is usually an employer’s biggest asset, they should be protected at all costs,” Peterson said.

Peterson added that employers must understand that their obligations extend beyond supplying an appropriate mask; they must also provide instructions on how to properly use the mask (including putting it on and taking it off), ensuring proper fit and proper disposal of masks. Once employees have received instructions on how to use their mask, they must comply with that training.

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