An obligation to notify
On 28 July 2020, temporary regulations were approved under the Occupational Health and Safety Act 2004 (OHS Act) that specify when employers and self-employed persons must notify WorkSafe of a confirmed diagnosis of coronavirus (COVID-19) in the workplace.
Failure to notify WorkSafe can result in a penalty.
When to notify WorkSafe
Employers and self-employed persons, with management or control of a workplace must notify WorkSafe immediately after becoming aware that:
- an employee, independent contractor, employee of the independent contractor or self-employed person has received a confirmed diagnosis of coronavirus (COVID-19) and
- the employee, independent contractor, employee of the independent contractor or self-employed person has attended the workplace within the relevant infection period.
An employer will be considered to be 'aware' of the incident when they have been notified of the confirmed diagnosis by either the employee, independent contractor, employee of the independent contractor, or by the Department of Health and Human Services (DHHS).
Notification is not required when a person's workplace is their home, and that person has not attended any other workplace over which their employer has management or control of, within the relevant infection period.
The infectious period under these regulations, is the period of time between:
- the date, being 14 days prior to the onset of symptoms consistent with coronavirus (COVID-19) or a confirmed coronavirus (COVID-19) diagnosis (whichever comes first), and
- the day on which the person receives a clearance from isolation from DHHS.
A confirmed coronavirus (COVID-19) diagnosis means a person has undergone a diagnostic procedure and has received positive result for coronavirus (COVID-19), also known as 'novel coronavirus 2019'.
See the Department of Health and Human Services (DHHS) for the case definition of a confirmed case of coronavirus (COVID-19).
How to notify
A coronavirus (COVID-19) notifiable incident in the workplace requires immediate notification to WorkSafe by either:
Option A: Completing the COVID-19 reporting form
Option B: Calling WorkSafe on 13 23 60
WorkSafe will then record details of your incident and send you an email with a unique link for you to complete the last stage of notifying us of the full details in writing. It is mandatory that you complete the full details in writing within 48 hours.
Duty to preserve incident sites
Generally, there is a requirement under the OHS Act to preserve the site of a notifiable incident. However, you are not required to do so if there is a need to:
- protect the health and safety of a person
- aid an injured person involved in the incident or
- take essential action to make the site safe or to prevent further occurrence of an incident.
If a person with a confirmed diagnosis of coronavirus (COVID-19) has attended the workplace during the infectious period, it is essential the site is cleaned and disinfected, in order to prevent further transmission of the virus.
Therefore, the requirement to preserve the incident site does not apply after a confirmed diagnosis of coronavirus (COVID-19).
Employers should follow any advice or direction provided by DHHS when a confirmed case of coronavirus (COVID-19) has been identified.
Who is required to notify WorkSafe?
The duty to notify WorkSafe of incidents applies if you are:
- an employer, who has management or control of a workplace
- a self-employed person, who has management or control of a workplace.
An 'employer' is defined in the OHS Act as a person who employs one or more, other persons under contracts of employment or contracts of training.
This definition covers an individual, a company, body corporate, partnership, unincorporated association, franchising operation or not-for-profit organisation, in the private or public sector who has one or more employees.
A 'self-employed' person is defined in the OHS Act as a person, other than an employer, who works for gain or reward otherwise than under a contract of employment or training.
The employer or self-employed person, who has management or control of a workplace where a notifiable incident has occurred, is under a legal duty to notify WorkSafe of that incident. This legal duty to notify does not apply to a manager or supervisor or any other staff member of the employer. Whilst a manager, supervisor or other staff member may be delegated the task of reporting an incident, the ultimate legal responsibility rests with the employer.
Failure to comply
Failure to comply with the reporting requirements in the OHS Act can lead to fines (for each offence) of up to:
- $39,652.80 for individuals*
- $198,264.00 for companies*
*Subject to variation depending on the value of a penalty unit.