Employers and their employees and contractors should be aware that it is a criminal offence to fail to alert the Victorian WorkCover Authority (WorkSafe) if an employee tests positive for COVID-19 and attends the workplace during the infectious period.
From 28 July 2020 until 27 July 2021, the Occupational Health and Safety (COVID-19 Incident Notification) Regulation 2020 requires employers and self-employed persons, with management or control of a workplace to notify WorkSafe immediately after becoming aware that:
- an employee, independent contractor, employee of the independent contractor or self-employed person has received a confirmed diagnosis of COVID-19 and;
- the employee, independent contractor, employee of the independent contractor or self-employed person has attended the workplace within the relevant infection period.
The “infection period” is the period commencing 14 days prior to the earlier of the onset of symptoms of COVID-19, or a confirmed COVID-19 diagnosis, and ends when a person is cleared from self-isolation by the Department of Health and Human Services (DHHS).
If you become aware that your employee, or as a self-employed person, become aware that you, have tested positive for COVID-19 and attended work during the infectious period, you must:
- Notify WorkSafe immediately by calling 13 23 60;
- Within 48 hours of first notifying WorkSafe, provide written notification to WorkSafe using the form published on WorkCover’s website: https://www.worksafe.vic.gov.au/form/confirmed-covid-19-diagnosis-rep
- Ensure that the workplace, or part of the workplace, that the person attended is not disturbed until a WorkSafe inspector visits the location, or until such time as a WorkSafe inspector directs.
You may otherwise attend the workplace, or part of the workplace, that the employee attended for the purposes of protecting the health and safety of any person, or to prevent another incident from occurring.
As well as notifying WorkSafe, you should immediately seek advice from DHHS if there has been a confirmed case of COVID-19 in your workplace so that they can advise you of what to do to protect your workplace and your other employees.
Employers should not take these new regulations lightly: the offence carries significant penalties, being a maximum penalty of $198,264.00 for a body corporate, or $39,652.00 for an individual, per offence.
Employers have a general duty of care in the workplace and if they negligently cause a workplace death – including by a person contracting coronavirus at work and later dying – they can be jailed for up to 20 years, or fined up to $16.5 million. This requires a serious breach of the duty of care owed to employees (and others) relating to health and safety under the Occupational Health and Safety Act 2004 (Vic). These new workplace manslaughter laws came into effect on 1 July 2020.
This information is general only and is not to be taken as legal advice with respect to your organisation’s specific circumstances. Should you require advice specific to your circumstances, please contact the team at PH Solicitor at firstname.lastname@example.org or by phone on (03) 9642 0435.