Is this the winter of our discontent? The importance of revisiting WHS while “living with” COVID-19

SEAMUS BRAND, ASSOCIATE, WALLMANS LAWYERS

Throughout the COVID-19 pandemic, employers have largely relied on Government health advice and Government health orders (GHO) to inform (or compel) their response to COVID-19. In some cases, employers were legally required to comply with a GHO and could rely upon it to justify the making of hard, but necessary, decisions. Many GHO have since been withdrawn and the emergencies giving rise to them declared “over” (at least in a legal sense). Meanwhile, Australia faces its first winter in the era of “living with COVID”. This has left many employers without the GHO safety net. It also leaves other employers (never subject to a GHO) with the continued uncertainty as to precisely how the manage the workplace risks of COVID-19, particularly during this “winter wave”.

This article serves as a reminder that persons conducting a business or undertaking (employers) should not consider the reduction in GHO as an invitation to downplay or become complacent as to the work health and safety (WHS) considerations posed by COVID-19, particularly those involving vaccination. We examine the legal basis and justification for GHO relating to COVID-19 in SA with a particular focus on vaccine directions, then considers whether an employer can rely on that same legal basis and justification, and finally broadly discusses the WHS obligations owed by an employer in the context of COVID-19.

On 22 March 2020, the State Coordinator for the State of South Australia (the State Coordinator) declared a Major Emergency in respect of the outbreak of COVID-19.1 From then until the Revocation of the Major Emergency Declaration on 24 May 2022, the State Coordinator issued numerous directions pursuant to s 25 of the Emergency Management Act 2004 (SA) (the EM Act) (together, the Directions). The Directions were intended to achieve the objects of the EM Act, which include the promotion of community resilience and reduction of community vulnerability in the event of an emergency.2

While many South Australians did not contract COVID-19 for considerably longer than the rest of the world, this could be considered an ancillary benefit to the Directions’ primary purpose of ensuring the SA healthcare system would not buckle under the pressure of a pandemic. As we all no doubt remember, we were reminded to comply with the Directions to help ‘flatten the curve’ and ensure we kept the cases below the ‘healthcare system capacity’ line.3 This protection of the healthcare system was undoubtedly to ensure the EM Act’s objects were more likely to be achieved.

On 7 October 2021, the State Coordinator directed that a person could not engage in work or perform duties in a healthcare setting from 1 November 2021 unless they had received at least one dose of a TGA approved COVID-19 vaccine and had received, or had evidence of a booking to receive, a second dose of a TGA approved COVID-19 vaccine within one month of that first dose (the Healthcare Vaccine Direction). The Healthcare Vaccine Direction was the time the SA Government mandated vaccination against COVID-19 in certain workplaces. Unlike the Directions issued earlier, the Healthcare Vaccine Direction included a specific purpose: to maintain the provision of, and minimise disruption to, healthcare services in SA despite COVID-19 spreading in the industry and community generally.

A review of the Directions mandating vaccinations that followed reveals a similar purpose – maintaining the provision of, and minimising disruption to SA’s education industry,4 passenger transport industry,5 aged care and disability services,6 and emergency services 7 (the Vaccine Directions). Each of these industries and services are no doubt essential to promoting community resilience and reducing community vulnerability during a pandemic which had the capacity to severely cripple the State’s ability to provide some of its core functions by temporarily, but significantly, reducing the size of its workforce. While the Directions all sought to “flatten the curve” to protect the healthcare sector, the Vaccine Directions appreciated that it is not the only sector that if overwhelmed could critically damage community resilience and exacerbate community vulnerability.

When employers not bound by Healthcare Vaccine Direction or the Vaccine Directions implemented their own vaccination policies, they may have taken for granted the existence of the Vaccine Directions as justification enough for their own policy. However, the Vaccine Directions were the SA Government’s measures to achieve the objects of the EM Act and protect the SA Government’s ability to provide some of its most basic functions. Arguably, most employers not subject to the Vaccine Directions do not have an equivalent duty to the population of SA at large. While the State Coordinator’s decision to issue, and later revoke, the Vaccine Directions are certainly indicators of SA’s capacity to cope with COVID-19 as a whole, it would be unwise to use those decisions alone to justify anything more than the promotion of community resilience and reduction in community vulnerability. As such, an employer’s primary approach to managing COVID-19 in its workplace should not find its basis in the need to meet the objects of the EM Act, but instead in the employer’s its obligations owed to protect the WHS of its employees.

The Work Health & Safety Act 2012 (SA) (WHS Act) imposes a duty on employers to, as far as is reasonably practicable, eliminate or minimise the risks to health and safety of its employees, customers, clients and visitors to its workplace.8 Whether something is “reasonably practicable” is a question of both law and fact, answered by balancing the likelihood of the risk occurring and the harm that might result with the availability, suitability and associated cost of measures implemented to eliminate that risk.9 Employers in SA must therefore consider the risk of contracting COVID-19 and

the harm that might arise from infection and determine the most appropriate measure to eliminate or reduce that risk where that measure is available, suitable and can be implemented without grossly disproportionate cost.

There was never doubt that the obligations imposed on employer (by the WHS Act) are an entirely separate matter (in compliance terms) to those contained within varying GHO across jurisdictions. However, it became a practical reality that the somewhat uncomfortable label of “COVID Law” became a hybrid of public health and safety considerations – particularly for employers. Further, the similarities in both laws (in terms of what they were seeking to protect and avoid) meant their concepts often overlapped – particularly in terms of assessing what might be “reasonable” in a given situation.

Prior to 2022, questions of reasonable practicability concerning the COVID-19 pandemic largely concerned the suitability of different measures to address a relatively constant risk. In 2020, the risk of contracting COVID-19 and suffering harm from it was believed great enough to justify whole industries directing their employees to work from home as that was the measure thought to be most suitable, despite its significant cost. As more was learned about COVID-19, measures such as social distancing and mask wearing became more suitable and could be implemented for a lesser cost.

Once vaccinations against COVID-19 became readily available, a vaccination policy could be considered a reasonably practicable measure of eliminating or minimising the risk of COVID-19 as vaccines were considered to provide the best level of protection against that risk for a comparatively low cost.10 During this period, employers could more readily rely on the approach taken by the SA Government as an indicator of the risk posed by COVID-19 as legally the Directions then included social distancing requirements, stay at home orders and mask wearing which, when considered together, effectively dictated what was a reasonably practicable WHS response.

Now however, with the Major Emergency Declaration revoked, employers must return to their own assessment of the risks posed by COVID-19 and the reasonable practicability of the measures imposed by the employer to eliminate or mitigate that risk. While the revocation of the Major Emergency Declaration and the Directions would appear to indicate that the risk of acquiring COVID-19, or the harm associated with it, is reducing, this must be considered in light of an employer’s WHS obligations being owed under the WHS Act and not the EM Act.

There is now reduced utility in using the actions of the SA Government to inform an employer’s decisions regarding WHS as compared to this time in 2021 or 2020. Even when Governments across Australia were taking a more active role in mandating vaccinations, Governments varied quite significantly as to the number and scope of GHOs in their particular jurisdiction. The approach was far from uniform.

Even now, by withdrawing most of the Vaccine Directions, the Government is by no means suggesting the COVID no longer poses a risk to the community, or indeed to workplaces. As but one example, the Australian Technical Advisory Group on Immunisation is concerned that the number of people ill from COVID-19 is expected to increase in the coming months11 and the Australian Health Protection Principal Committee has recently reduced the immunity period post-infection from 12 weeks to 28 days.12

It is perhaps now less clear than ever what measures an employer must implement (as opposed to should implement) that are reasonably practicable to meet its WHS obligations in the face of COVID-19. This was and remains a “caseby-case” assessment for all workplaces. The effectiveness of vaccination as a measure to eliminate or reduce the risks arising from COVID-19 continues to change as new variants of COVID-19 evolve and spread. The harm suffered from contracting these variants is similarly unclear. At present, only two things are certain: • the health authorities’ expectation that the risk of contracting COVID-19 will rise as winter continues; and • what measures are reasonably practicable (and to what extent) to ensure an employer meets its WHS obligations (arising from the risks posed by COVID-19) must remain well agile and considered to address the ever changing risk that is its focus –

COVID-19 itself.

Contrary to what the revocation of the Major Emergency Declaration might suggest, when it comes to the risks posed by COVID-19, employers must now be more vigilant than ever. B

Endnotes 1 Pursuant to s 23(1) Emergency Management Act 2004 (SA) 2 Emergency Management Act 2004 (SA) s 2(1)(b). 3 Disaster Preparedness and Resilience Branch, SA

Health Respiratory Disease Pandemic Response Plan (including influenza, COVID-19, SARS & MERS),

March 2020, page 25. 4 Emergency Management (Education and Early Childhood

Settings Vaccination) (COVID-19) Direction 2021 (SA). 5 Emergency Management (Passenger Transport

Vaccination) (COVID-19) Direction 2021 (SA). 6 Emergency Management (In-home and Community Aged

Care and Disability Support Workers Vaccination) (COVID-19) Direction 2021 (SA) 7 Emergency Management (Metropolitan Fire Service

Workers Vaccination) (COVID-19) Direction 2022 (SA); Emergency Management (South Australia Police

Workers Vaccination)(COVID-19) Direction 2021 (SA). 8 Work Health & Safety Act 2012 (SA) s 17(1). 9 Ibid s 18. 10 ATAGI, ATAGI Statement on use of COVID-19 vaccines in an outbreak setting, 13 July 2021, <https://www.health.gov.au/news/atagistatement-on-use-of-covid-19-vaccines-in-anoutbreak-setting>. 11 ATAGI, ATAGI updated recommendations for a winter dose of COVID-19 vaccine, 7 July 2022, <https://www.health.gov.au/news/atagiupdated-recommendations-for-a-winter-dose-ofcovid-19-vaccine>. 12 AHPPC, AHPPC statement on COVID-19 winter update and ongoing health protection measures to support our community, 8 July 2022, < https:// www.health.gov.au/news/ahppc-statement-oncovid-19-winter-update-and-ongoing-healthprotection-measures-to-support-our-community>.