The COVID-19 pandemic has been a global health and economic crisis with devastating effects. For many countries, the focus has shifted to economic recovery and growth. Integral to this is the safety of workers’ physical and mental health.
It is widely reported that poor mental health costs employers huge sums of money, whether as a result of sickness absence or decreased productivity. The pandemic has brought these issues into sharper focus, along with new challenges to mental health owing to lockdowns and job insecurity. As such, many governments and regulators are placing greater emphasis on health and safety in the workplace than ever before.
Vaccination rollouts are playing a key role in economic recovery. In the UK, COVID-19 vaccines will be mandatory for frontline NHS staff, unless they are exempt, from 1 April 2022. In Australia, state and territory governments have mandated vaccinations for certain high risk industries such as healthcare, aged care, construction and education, with some governments extending this to a broad range of occupations. In the US, employers with 100 or more employees should expect an emergency temporary standard (ETS) requiring them to mandate that all employees be vaccinated against COVID-19 or else undergo weekly testing. Enforcement capabilities include periodic inspections and stiff fines for employer non-compliance.
Against this background, will there be a new dawn of global regulatory enforcement action in light of the pandemic? In this article, we provide a cross-jurisdictional review of how COVID-19 risk will be regulated by criminal enforcement agencies in the UK, US and Australia.
The United Kingdom consists of England, Scotland, Wales and Northern Ireland, the latter three of which have devolved powers to enable them to make their own decisions about COVID-19 rules, based on the risk in that country. Each country has made slightly different decisions at different times and, for consistency, this article will focus on the situation in England, albeit we expect the future COVID-19 risks in the devolved nations to be very similar.
At the outset of the pandemic, the UK Government provided additional funding of £14 million to the Health and Safety Executive (HSE), in order to strengthen its capacity to tackle COVID-19. The HSE is the health and safety regulator for England and Wales. It has extensive powers to investigate potential breaches of safety law (including breaches alleged to relate to COVID-19) and to prosecute companies and individuals when it considers that they have fallen short of the required standard.
In light of Prime Minister Boris Johnson’s announcement on 19 January 2022, many will now be returning to their offices and workplaces. Early reports indicate there is likely to be a more flexible approach to home working across the country and across sectors, as businesses try to navigate how best to accommodate this significant change in working culture.
Last year, the UK Government confirmed it will make COVID-19 vaccines mandatory for frontline NHS staff, unless they are exempt, from 1 April 2022. It remains to be seen whether there will be a wider compulsory vaccine rollout but we would predict not.
As workers return to their workplaces following a successful vaccination rollout, employers are required by the HSE to continue to manage the risk of COVID-19 spreading, in line with the government’s ‘Working Safely’ guidance. Businesses are required to have in place a COVID-19 risk assessment and resulting control measures to manage the risk in so far as is reasonably practicable.
Mental wellbeing has also become a more pressing concern throughout the pandemic, with 43% of workers stating that they are finding it harder to sleep at night, and 40% feeling overworked and more anxious. The HSE regulates work-related stress and, for a number of years, even pre-COVID-19, the HSE has highlighted the obligations that businesses have in helping to manage work-related stress. As with risks to physical health, the HSE requires a workplace risk assessment to be conducted and any relevant control measures identified to be implemented accordingly.
Speaking after the hearing following the first COVID-19 prosecution, the HSE inspector said:
“This is the first prosecution to arise from the Spot Check programme. We’ve repeatedly stressed that prosecution is a last resort, but this case clearly illustrates that where there is consistent disregard to COVID or other risks to employees’ health and safety, HSE will use its powers to take action”.
It is clear that prosecution is a realistic prospect for those who disregard COVID-19 safety requirements.
This particular prosecution also involved some serious non COVID-19 alleged breaches, such as failings relating to working at height and unsupported excavations. There has still therefore not been any prosecution involving only COVID-19 allegations and we cannot help but wonder whether the HSE would have brought this prosecution if the more traditional failings were not also present. It also seems likely that if companies and individuals follow HSE recommendations or ‘warnings’, however communicated, there is unlikely to be any prosecution to follow.
Nevertheless, we believe that there is a real risk of prosecution for businesses that disregard COVID-19 safety requirements, and an even greater risk that the HSE will also ‘spot’ some of the more traditional failings when visiting the site under the guise of a COVID-19 spot check. All spot checks should therefore be taken seriously and carefully managed, just like any other HSE inspection. It will be interesting to see whether the trend of whistleblowing to the HSE will continue now that the UK is more ‘open’, and whether the HSE will continue to follow those reports up so robustly.
With increasing concerns regarding mental wellbeing generally post-pandemic, and with reports finding that only 20% of workers have been offered online wellness and wellbeing tools, our expectation is that the HSE will also be assessing what control measures are in place to support employees’ mental health throughout the return to the office and hybrid working solutions. Although the HSE has not yet brought any prosecutions for work-related stress, we know that it is an issue which has been high on their agenda for some time, and we can envisage a situation where such a prosecution will be justified in the post-COVID-19 landscape, given the changes in the culture of office working and the mental health risks associated with that.
More than 200 million Americans are vaccinated against COVID-19, but cases continue to rise along with an increase in mental health issues amongst employees. Employers should be aware of the recent federal, state, and local regulations aimed at preventing the spread of COVID-19 and their duty to respond to employees’ mental health conditions.
On September 9, 2021, US President Joe Biden announced a plan to require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any unvaccinated workers to produce a negative test result on at least a weekly basis. The plan directed the Department of Labor’s Occupational Safety and Health Administration (OSHA) to develop an Emergency Temporary Standard (ETS) that would cover most private sector employers. However, on January 13, 2022, the US Supreme Court stayed the OSHA ETS pending further review before US Court of Appeals for the Sixth Circuit (and the US Supreme Court, if needed).
The US Supreme Court did allow a separate regulation issued by the Centers for Medicare and Medicaid Services to take effect requiring that almost all employees in nursing homes, hospitals and other facilities that receive Medicare and Medicaid payments from the federal government be vaccinated. Many states have also issued orders requiring some or all healthcare workers to be vaccinated, including California, Colorado, Illinois, Maryland, New Jersey, New Mexico, New York, Rhode Island and Washington.
Moving forward, employers should be able to implement a program that complies with their particular jurisdiction and sector requirements. Employers should also continue to make preparations to comply with the ETS in the event it is upheld by both the Sixth Circuit and the Supreme Court. Additionally, employers should continue to keep up to date with both state and local requirements as regulations on COVID-19 are constantly changing.
According to a report from the Portland, Oregon-based insurance company, The Standard, the COVID-19 pandemic has caused increased challenges for workers. The report refers to 46% of workers suffering from mental health issues during the pandemic in 2020 compared to 39% pre-pandemic in 2019.
Mental health issues can affect the workplace in many different ways. For instance, if an employee’s mental health condition qualifies as a disability under the Americans with Disabilities Act (ADA), covered employers must provide them with certain protections.
Particularly, the ADA:
- Prohibits disability discrimination against employees and job applicants.
- Prohibits disability-based harassment.
- Requires employers to engage in an interactive process when an employee’s need for an accommodation need is known.
- Directs employers to provide a reasonable accommodation to qualified individuals with a disability if there is no undue hardship.
- Prohibits retaliation against an employee for requesting a reasonable accommodation.
Employers should therefore be mindful of the different ways COVID-19 has affected and continues to affect employees’ mental health and be cognizant of what their legal obligations are in such situations.
Restrictions in many parts of Australia have eased as vaccination rates have steadily increased. However, the rapid spread of the Omicron COVID-19 variant has resulted in sudden worker shortages in essential services, such as in healthcare and transport, due to the combination of isolation requirements and a heavy reliance on over-burdened testing facilities.
While we anticipate the level of working from home will reduce as Australia transitions to ‘living with the virus’ and vaccination levels continue to increase especially amongst children, working from home is still widely encouraged as a control measure and is set to remain higher than pre-pandemic levels which was just 5.3% in 2019.
In Australia, health and safety legislation and its enforcement is the responsibility of each state, territory and the Commonwealth. Other than Victoria, all Australian states and territories have adopted harmonised work health and safety legislation based on the model Work Health and Safety Act (Model Laws). While there are variations between the states and territories, the legislation is largely similar and broadly establishes that employers have a duty to provide a safe working environment and a duty to prevent or reduce risks to health and safety, for which mental health has recently received attention.
We have seen unprecedented levels of poor mental health in Australia as a result of the pandemic. For example, a study conducted by the New South Wales workplace health and safety (WHS) regulator, SafeWork NSW, found 38% of supervisors and 27% of workers reported feeling mentally unwell in the last 12 months and 53% and 45% respectively of those said the negative change in their mental health was caused by the COVID-19 pandemic.
Consequently, there has been growing awareness amongst government and WHS regulators around the importance of managing risks to employees’ mental health in the workplace. For example:
- In May 2021, a majority of ministers responsible for WHS matters agreed to amend the Model Laws to deal specifically with psychological risks.
- South Australia’s WHS regulator, Safework SA, announced a compliance campaign in March 2021 wherein inspectors would be auditing workplaces to ensure they were managing the risks associated with psychological safety.
- The Australian Capital Territory’s regulator, Worksafe ACT, recently released its 2021-23 Strategy for Managing Work-related Psychosocial Hazards in which it has committed to utilising statutory notices and prosecutions to tackle psychological risks and hazards.
- WHS regulators in Australia have already been actively enforcing penalties for breaching WHS legislation with respect to employees’ mental health.
While it is still early days, we anticipate regulators will be increasingly focused on how employers are managing psychological risks and will not hesitate to enforce penalties.
There are severe penalties that apply for breaching WHS legislation in Australia. The Model Laws provide three categories of criminal offences for breaches of health and safety duties:
- Category 1 (when a duty holder, without reasonable excuse, engages in conduct that recklessly exposes an individual to a risk of death or serious injury or illness) has a maximum penalty of A$3 million for a corporation, A$600,000 and/or five years imprisonment for an individual as a business owner and A$300,000 and/or five years imprisonment for an individual as a worker.
- Category 2 (when a duty holder fails to comply with a health and safety duty that exposes a person to risk of death or serious injury or illness) has a maximum penalty of A$1.5 million for a corporation, A$300,000 for an individual as a business owner and A$150,000 for an individual as a worker.
- Category 3 (when a duty holder fails to comply with a health and safety duty) has a maximum penalty of A$500,000 for a corporation, A$100,000 for an individual as a business owner and A$50,000 for an individual as a worker.
The Model Laws also provide for the issuing of improvement, prohibition and infringement notices as an alternative to prosecution where employers have breached WHS legislation.
In Victoria, the Occupational Health and Safety Act 2004 (Vic) (OHS Act) provides similar criminal offences for breaches of health and safety duties, including the following:
- Section 21(1) of the OHS Act creates an offence of failure by employers to provide and maintain a safe working environment. The maximum penalty for a corporate body is A$1,635,660 and for an individual is A$327,132.
- Section 32 of the OHS Act creates an offence when a person who, without lawful excuse, recklessly engages in conduct that places or may place another person who is at a workplace in danger of serious injury is guilty of an indictable offence. The maximum penalty for a corporate body is A$3,634,800 and for an individual is 5 years imprisonment and/or fine of A$327,132.
Furthermore, employers could be charged with industrial manslaughter where an employee develops a psychological injury at work which results in death. Australian states and territories, except for South Australia and Tasmania, have introduced laws for industrial manslaughter which carry significant penalties. For example, in Victoria a body corporate can be fined up to A$16,522,000 and an individual can face up to 20 years’ imprisonment.
With regulators becoming increasingly focused on how employers are managing psychological risks and hybrid working arrangements becoming more common, it is imperative that employers proactively mitigate against the aforementioned risk factors associated with working from home.
Safe Work Australia, who is responsible for developing the Model Laws, has identified the following steps employers must take to manage risk to employees’ mental health where reasonably practicable whilst working from home, including:
- Maintaining regular communication with workers and encouraging workers to stay in contact with each other.
- Making sure workers are effectively disengaging from their work and logging off at the end of the day.
- Eliminating or minimising physical risks.
- Providing workers with a point of contact to discuss their concerns and to find workplace information in a central place including health and safety representatives (HSRs).
- Providing information about mental health and other support services available to workers;
- staying informed with information from official sources and sharing relevant information with workers and HSRs as it becomes available.
- Offering your workers flexibility, such as with their work hours, where possible.
- Responding appropriately to signs a worker may be struggling, e.g. changed behaviour.
- Informing workers about their entitlements if they become unfit for work or have caring responsibilities