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.