The future of COVID-19 risk and regulatory enforcement: a cross-jurisdictional review

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. 

The HSE has undertaken a large number of ‘COVID spot checks’ since the outset of the pandemic and, where appropriate, it has taken enforcement action. It appears that some of those visits may have arisen out of whistleblower reports, with HSE statistics from last year showing that the HSE received over 5,000 reports regarding alleged safety breaches in the first year of the pandemic alone.

The HSE has a number of enforcement tools at its disposal that it is able to use prior to taking a decision to prosecute. For example, the HSE can issue Enforcement Notices (Improvement Notices or Prohibition Notices) or Notifications of Contravention where they consider that there is a breach of safety law and before they have taken a prosecution decision. Each of these enforcement tools has different, nevertheless, serious implications for businesses. However, the HSE can also prosecute where the evidence justifies it, and it is in the public interest to do so. In England, fines following successful prosecutions can reach into millions of pounds for medium and large businesses, even for relatively minor incidents where there was no actual harm caused, only risk of harm.

Until recently, the HSE had only taken steps to issue Enforcement Notices and Notifications of Contravention to those businesses which did not have adequate COVID-19 secure measures in place. That position changed on 17 September 2021 when England saw its first successful prosecution for COVID-19 related breaches following a spot check.

An HSE inspector performed a proactive COVID-19 spot check at a construction site in Manchester. The inspector identified a number of safety issues, some of which, but not all, related to COVID-19. The HSE issued a Prohibition Notice and two Improvement Notices however, a check-up visit by the HSE established that no improvement had been made and in fact, further breaches were evident. It was at this point that a decision was taken to prosecute.

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.

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.

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.

Initially, public health orders (PHOs) issued by the state and territory governments in Australia only mandated vaccinations for certain high-risk industries such as healthcare, aged care, construction and education. However, Victoria, Western Australia, Queensland and the Northern Territory have now mandated vaccinations for a broad range of occupations.  Further, a third vaccination dose is also now mandatory in Western Australia for the majority of workers and in Victoria, New South Wales and South Australia for workers in high-risk industries.

Employers can face fines of between A$5,000 to more than A$100,000 for failing to ensure unvaccinated staff do not enter the workplace. Employers need to ensure they familiarise themselves with their obligations under the relevant PHOs in their jurisdiction to avoid such penalties.

In jurisdictions or industries where vaccination has not been mandated by PHOs, employers need to consider whether it would be reasonably practicable to mandate vaccination in order to reduce risk of infection in their workplace, so as to avoid breaching their workplace health and safety duties and any penalties.