Everyone’s Had It… So, What’s Reasonable Now?

Even before March 2020, before COVID Omicron, the RAT’s and the lockdowns, knowing what ‘normal’ was meant to look like was always a challenge. For employers and their advisors, we relied on the laws and decisions of the Tribunals and Courts to provide direction about what could (or should) be done (or not done). Now, just as we are all feeling the exhaustion of years of adaptation and compromise, we have to adapt yet again and plan for the ‘new normal’. From a Work Health & Safety (WHS) perspective, the challenge has now shifted from “don’t let anyone get it” to “well everyone’s had it, now what?”.

What will be the legacy of the past two years, when considering the other diseases that can be contracted in the workplace?  How will it change the approach of businesses to their WH&S protocols regarding those other common diseases?  And more particularly, what is the level of discomfort or distress that an illness has to cause, before an employer has to consider preventative measures?
The Last Days of a Pandemic
In order to protect staff and customers from COVID, most businesses have previously (pre-2022) adopted a minimum double vaccination policy, as well as additional measures such as mask wearing and social distancing requirements. Overall, these measures were upheld by the courts [1], as they were found to be reasonable and lawful in complying with the Public Health Orders.  They were further found to be a reasonable precaution to take given the obligations upon employers pursuant to section 19 of the WHS Act.  That section requires employers, so far as is reasonably practicable, to ensure the health and safety of every employee.  This legal requirement extends to employers reducing potential risks in order to ensure that the health and safety of their employees are not put at risk. That is, there is a requirement under the Act for employers to protect employees against not just dangers which are occurring or will occur, but dangers which might occur.

However, with each ‘new normal’ continuing to drag us through changes, and with developments such as the Omicron strain, it is clear that taking reasonable precautions in 2020 and 2021 will look different to what is required of businesses in 2022.

A recent COVID study by Yale University [2]  compared the effects of Omicron with previous variants (primarily Delta). The study highlights several key issues that must now be considered by employers when defining reasonable WHS precautions for their business, staff and customers in 2022.

Firstly, Omicron is less severe than some previous variants. This is resulting in less sick days, lower hospitalisations, lower ICU rates and lower mortality rates. [3] The Yale study found:
  1. A 0.5% hospital admission rate for Omicron compared 1.3% for Delta;
  2. The average stay in hospital for those admitted with Omicron was 1.5 to 3.4 days less than Delta; and
  3. Out of 52,297 Omicron cases included in the study, 7 were admitted to ICU, 1 case was unfortunately fatal, and none required mechanical ventilation.
  4. In comparison, out of 16,982 Delta cases, 23 were admitted to ICU, 14 cases were fatal, and 11 required mechanical ventilation. 
Secondly, vaccination continues to be the primary defence against COVID, with its principal effect being a reduction of ICU admissions and fatalities.  However, whilst still highly recommended, the evidence has begun to suggest that the vaccination was actually more effective against the Delta variant than Omicron, with a demonstrated lower effectiveness against hospitalisation for the more recent strain.

Thirdly, a significant proportion of the community being studied (in the Yale case, people in the United States), particularly those aged between 18 and 39, had already been infected by the virus. Those study participants therefore are considerably less likely to become ill or reinfect those around them to any significant extent, particularly in the months following infection. Given the relatively high case numbers in Australia to date, it can be expected that the same also applies here.
What does this mean for WHS and Australian businesses?

Whilst the Yale study is not authorative in any sense within Australian workplaces, it is instructive in highlighting the challenge that employers will face in dealing with COVID-19 as it transitions as a pathogen from being a pandemic to endemic.    Along with this study, evidence is mounting that chronic illness, especially for those under the age of 40 infected with Omicron, is rare.  As a result, consideration needs to be given as to how this changes the methodology required to protect employees.

This means that businesses can, and should, consider readjusting their WHS plans and responses for the current circumstances, rather than continuing with outdated approaches.
What WHS measures should employers have place? Compare the Medical Conditions

In answering the question about what employers should do to properly and legally respond to COVID in 2022, it raises the question as to what responses should be adopted to deal with other diseases.  

As a comparison, in Australia’s severe 2019 seasonal outbreak[4], there were 313,033 cases of confirmed influenza (flu). Infections, hospitalisations and mortality were proportionally higher in that year, with 3,913 hospital admissions (6.4%)[5] and 953 deaths. Whilst some Australian employers provide vaccination against the flu for their employees, there is not a practice in most businesses for rigorously preventing employees with flu-like symptoms from coming to work.  

Similarly, conditions like ‘shingles’, which can cause severe nerve pain and rashes that frequently lasts weeks, months and even years, is a very common disease; especially amongst older people. Furthermore, it is known to be triggered by stress [6].  This raises the question as to what steps employers take to reduce stress in the workplace.  It is a disease not generally associated with being a workplace issue. 

Hospitalisation remains relatively low in all three conditions, especially when vaccinated. So, the question remains, are employers obligated to approach COVID differently to other health conditions in relation to risk and exposure.

What’s the Threshold and what’s the response?

The issue for employers then is: “What threshold is required for applicable WHS measures to be put in place for diseases that may leave a person bedridden for one to two weeks (or, in the case of shingles, two to four- weeks), but is unlikely to harm them significantly?” This is not a methodology that is traditionally on the radar of most WHS policies.

For instance, if an employer is confronted with a circumstance where an employee refuses to work with anyone who is unvaccinated (or, alternatively, vaccinated), consideration should be given to the risks of actual harm and appropriate measures subsequently adopted. Those measures may be modest, especially where the risk is reduced.  For example, should employees who have been recently infected and recovered from COVID be treated differently to an employee who is double vaccinated with booster? Further, what additional risk mitigation factors should be considered? - the improvement of ventilation, maintenance of social distancing, and even the continued wearing of properly fitted masks, regular handwashing and the testing of people before they enter the workplace can have an impact.

What equivalent steps should be undertaken to address flu-like conditions?

How should employers operate to minimise the likelihood of work-induced stress triggering shingles, or other conditions exacerbated by stress?

As conditions like chronic flu and shingles are very debilitating, it is not clear why they have not been a focus of work health and safety.  What is very clear is that COVID has managed to change the landscape for businesses when considering such matters.

As a general consideration, in circumstances where employees face a relatively low level of risk of becoming chronically ill, the business may only be obliged (or entitled) to take modest preventative steps to minimise that risk.  However, that does not mean that businesses can ignore such measures, in fact, businesses can no longer ignore the previously underappreciated risks occasioned by such diseases in the workplace.  

[1] Jennifer Kimber v Sapphire Coast Community Aged Care Pty Ltd (2021) FWCFB 6015, Watson v National Jet Systems Ltd (2021) FWC 6182, Teslime Kuru v Cheltenham Manor Pty Ltd as trustee of the Cheltenham Manor Family Trust T/A Cheltenham Manor Pty Ltd (2021) FWC 949

[2] Clinical outcomes among patients infected with Omicron (B.1.1.529) SARS-CoV-2 variant in southern California

[3] https://www.medrxiv.org/content/10.1101/2022.01.11.22269045v1.full

[4] Muscatello, D. J., Nazareno, A. L., Turner, R. M., & Newall, A. T. (2021). Influenza-associated mortality in Australia, 2010 through 2019: High modelled estimates in 2017. Vaccine, 39(52), 7578-7583.

[5] Moa, A., Trent, M., & Menzies, R. (2019). Severity of the 2019 influenza season in Australia- a comparison between 2017 and 2019 H3N2 influenza seasons. Global Biosecurity, 1(1). DOI: http://doi.org/10.31646/gbio.47

[6] https://www.aihw.gov.au/getmedia/759199ff-f5c8-421d-a572-aaa984a02b49/aihw-phe-236_Shingles.pdf.aspx

Post by Hicksons' Partner, Warwick Ryan and Graduate Solicitor, Luke Rogers.

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