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The COVID-19 pandemic has caused world leaders to struggle with the best way to protect their citizen’s health and their right to make a living. In an effort to keep economies stable many government leaders, both locally and nationally, have dubbed certain work and some employees essential, thereby allowing them to continue in the ordinary course of their employment. Other industries have been deemed non-essential and have been ordered to close their physical doors. Many of these closed businesses have worked with their employees to transfer their duties to home settings using telephone and video communication for meetings and regular contact with their employees, clients and/or customers.

However, not all businesses or industries have complied. Instead, some have refused to close and have continued to require employees to be present for work duties. This has increased the risks of these employees being exposed to and/or contracting and becoming symptomatic for COVID-19. And, while one could argue that these employees could choose to remain at home, many cannot financially afford to take the risk of being fired by the employers for not showing up for work. Instead, it is highly likely that these employees are continuing to place themselves in harm’s way, due to the illegal actions of their employers.

An employer is responsible for providing employees with a safe working environment. This includes;

  • Election of a health and safety representative
  • The formation of a health and safety committee who can review and weigh in on safety decisions within the workplace environment
  • The cessation of any workplace condition or exposure that is unsafe for employees
  • Clear policies and procedures that are available to employees for reporting and resolving workplace dangers
  • A policy of no retaliation against those employees who speak up to report safety concerns

These rights continue to exist for all employees, especially now during the COVID-19 situation. Therefore, if you are an employee who has been mandated by your non-essential employer to continue coming into work, you may have a claim against them in the instance you contract the disease while in their employ.

If you feel the need to exercise these rights, it is important that you do so in accordance with the law. You may do the following;

  1. Refuse to carry out unsafe work procedures
  2. Cease working altogether
  3. Give notice to your employer immediately of your concerns
  4. Document your concerns in writing, providing your employer with a copy of the same
  5. Make yourself available for alternative work projects or an alternative worksite, such as your home

It is imperative that your basis for taking these actions is founded in reasonableness and a genuine need to protect yourself from an imminent threat in the workplace. While these issues have not yet been tested by the law, it is highly likely that they will be in the near future. Therefore, if you feel you are in a dangerous situation we strongly suggest you contemporaneously and accurately document your concerns, present them to your employer and make a decision that will protect your health and well-being.

And, while the extent of damages an employee could sue for after having contracted COVID-19 due to a non-essential workplace remaining open remains to be seen, it is likely the issues will be akin to a personal injury claim. Employers who refused to close, causing employees to become sick and experience long term effects, will be held to the same standard of care as any other personal injury claim including;

  • Duty of Care
  • Breach of that duty of care
  • Negligence
  • Injury

As such, persons who can prove negligence on the part of their employer and long term permanent effects from the alleged negligence, will present a case that could be viable.

Please continue to return to our site for frequently updated information pertaining to COVID-19 and your rights.

If you find yourself in need of assistance with this, or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.

CONTACT INFORMATION

Owen Hodge Lawyers Sydney
3/171 Clarence St
Sydney NSW 2000

Owen Hodge Lawyers Hurstville
Level 2, 12-14 Ormonde Parade
Hurstville NSW 2220

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