There is no doubt that the COVID-19 pandemic presents a multitude of challenges for businesses of all shapes and sizes, not least of which is their primary responsibility and concern to protect the health and welfare of their workforce.

So what steps should your business be taking and will a lack of action, or the wrong action, be seen as reckless conduct?

Reckless conduct

Although it may not seem like an obvious connection, there is a direct connection between an organisation’s response to the COVID-19 pandemic and reckless conduct laws.

While most jurisdictions do not have industrial manslaughter laws, they all have an offence which punishes an organisation and its officers if there is reckless disregard for the safety of others.

Under harmonised jurisdictions, this offence is called a category one offence. The test for a category one offence is that the alleged offender must have engaged in conduct, without reasonable excuse, that exposed another person to a risk of death or serious injury and that the offender was reckless as to the risk to that individual.

The framing of this offence suggests that there must be conduct which is more than mere inadvertence, negligence or carelessness, but that there was a clear reckless disregard for the safety of another person, for which there was no reasonable excuse.

In the context of the COVID-19 pandemic, this translates to the question: Are the arrangements in which your workforce are required to operate exposing them to contract a potentially life-threatening virus?

The question must be answered in two stages:

Stage 1: Level of knowledge

It is necessary to assess the level of knowledge your organisation has, or should have, at each particular point in time as to the seriousness of the risk of injury presented by the virus to your workforce.

In circumstances where we know of the devastating impact of the virus in other countries, coupled with the more stringent bans and recommendations made by our own Federal and State governments, it must be said that it is well known that the virus presents as a highly contagious and potentially deadly virus.

Further, the likelihood of the risk of injury converting to an actual illness may increase exponentially (unless the proposed government measures work well in the next two weeks).

Stage 2: Assessment of controls

You then must make an assessment of whether the controls you have put in place are sufficient to control the risk at each point in time. In short, are all reasonable steps being taken to prevent the transmission of the virus? These steps will include those recommended by Health and Government agencies and could include:

• hygiene controls;
• monitoring those accessing the workplace to check if they may be presenting with symptoms;
• excluding those who have symptoms of COVID-19, have been diagnosed with the virus and are still contagious or have been in close contact with a confirmed case of COVID-19; and
• enforcing social distancing.

If you are not confident that these steps are being taken, then the question will arise as to whether any failure to implement those steps would amount to recklessness.

Approach of the Regulator

The approach of the regulator will also be relevant as to how your conduct will be viewed in hindsight should an incident occur.

For example, SafeWork NSW released a statement of intent this week which acknowledged that not every aspect of the legislation can be complied with fully given the COVID-19 pandemic and the associated government orders, in particular the Public Health (COVID-19) Gatherings Order 2020.

The regulator has stated that it “will take a take a reasonable and proportionate response to compliance, including with a business’s ability to meet its WHS duties due to constraints associated with the pandemic”. These may include duties such as:

• participation in face-to-face training and practical hands-on training demonstrations;
• maintaining records in prescribed formats;
• securing access to health surveillance clinics;
• testing of emergency plans; or
• compliance with other regulatory requirements.

Next steps

These are unprecedented times and clearly every effort should be made to ensure the health and safety of your workforce. Stay informed and ensure that any decision making around your workforce arrangements is based on good medical advice from the government and that you are constantly assessing the rapidly changing risks that may be presented in how your organisation operates.