Consistent with the ever-changing workplace during this COVID-19 Pandemic, another new requirement has been introduced for employers.
All employers (this includes self-employed persons) in Victoria must now notify WorkSafe Victoria (WorkSafe) of a ‘confirmed COVID-19 diagnosis’.
This obligation applies, whether it is an employee, independent contractor or their employee who has received the diagnosis and that worker has attended the workplace within the ‘infectious period’.
Existing obligations to notify WorkSafe of an incident
This new obligation fits in with the existing process to notify WorkSafe of safety incidents. For years Victorian employers have been required to notify WorkSafe of incidents1. An incident includes (amongst other things) the death of a person, or a person requiring immediate treatment as an in-patient at a hospital.
For example, if a worker contracted COVID-19 in the workplace and the condition was caused or was suspected of causing a COVID-19 death, an employer was already required to notify WorkSafe. Obviously, by this stage, it is too late to take preventative measures. The new regulations broaden the scope of a reportable “Incident” under s.37 to improve the information available to WorkSafe and to reduce the risks to health and safety in the workplace arising from COVID-19 diagnosis.
What WorkSafe says
“Timely notification of potential workplace transmission of coronavirus (COVID-19) is critical for effective management of related health and safety risks and the prompt investigation of potential breaches of employer duties.”
What an employer must do
From 28 July 2020, employers must notify WorkSafe immediately after they become aware that an employee, independent contractor, or independent contractor’s employee has attended the workplace while infectious. The ‘infectious period’ includes the 14 days prior to the onset of COVID-19 symptoms or the confirmed diagnosis (whichever occurs first) until the date on which the person receives clearance from isolation from the Department of Health and Human Services.
This means that as soon as an employer becomes aware of an employee’s positive diagnosis, and that employee has been in the workplace (anywhere they perform work – including at home) within the infectious period, the employer must notify WorkSafe by calling 13 23 60. Any delay in reporting to WorkSafe will not reflect well on the employer. It is vital to ensure that if a supervisor learns of a worker’s confirmed diagnosis, they are aware of this new obligation to notify WorkSafe.
It is therefore prudent for all Victorian employers to ensure they have a current plan in place to provide a workplace that is safe and without risks to health and monitors the health and safety of employees. This should include actively managing the risk of workers contracting and transmitting COVID-19, regardless of where the worker is currently performing their duties whether it is at the office, in public or at home. The plan should also include the steps to be taken in response to a positive diagnosis, with one of those steps being making a report to WorkSafe.
Penalties for non-compliance
Failure to comply with this requirement carries the same maximum penalty as for any other failure to notify of an incident, that being $198,264 (1,200 penalty units) for a company or $39,652 (240 penalty units) for an individual. In addition, where a company officer or an individual’s conduct is negligent in breach of the duties owed under this Act, and causes the death of a person, then the industrial manslaughter provisions may apply with the associated penalty of imprisonment for up to 25 years.
Where you report a COVID-19 diagnosis (or any other incident) to WorkSafe, seek legal advice prior to WorkSafe attending your site or prior to the commencement of any WorkSafe investigation, to appropriately manage the legal risks to the company and individuals during that process.
1. s.37 of the Occupational Health Safety Act 2004 (VIC).
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