New requirement to notify WorkSafe Victoria of confirmed COVID-19 diagnoses

On 28 July 2020, the Victorian Government introduced temporary regulations—the Occupational Health and Safety (COVID-19 Incident Notification) Regulations 2020 (Regulations)—requiring employers to notify WorkSafe Victoria (WorkSafe) of confirmed cases of COVID-19. These temporary regulations will apply for 12 months.

WorkSafe has commented that the “timely notification of potential workplace transmission” will assist with the “effective management of related health and safety risks and the prompt investigation of potential breaches of employer duties”.

Employers must notify WorkSafe for confirmed COVID-19 cases

Under the Regulations, employers and self-employed persons with management or control of a workplace must notify WorkSafe immediately after becoming aware that:

• an employee, an independent contractor, an employee of an independent contractor or a self-employed person has received a confirmed diagnosis of COVID-19, and
• that person attended a workplace under the management or control of the employer within the “infectious period”.

The “infectious period” is the period between:

• the 14 days prior to the onset of symptoms or the day the person receives the confirmed diagnosis (whichever comes first), and
• the date the person receives a clearance from isolation from the Department of Health and Human Services (DHHS).

The requirement to notify Worksafe is in addition to any requirement to notify DHHS.

Notification is not required when a person’s workplace is their home, and that person has not attended any other workplace of the employer during the “infectious period”.  

These new notification requirements are substantially broader than the previous requirement to notify WorkSafe when employers or self-employed persons became aware of a COVID-19 case that occurred in a workplace, and where it caused or was suspected of causing a workplace death. The requirements are also broader than any COVID-19 notification obligations in place in other states or territories

Notify WorkSafe immediately by calling 13 23 60

Employers or self-employed persons must notify WorkSafe immediately after becoming aware of the confirmed case and that the person attended a relevant workplace while infectious. This initial notification must be followed with a written notification within 48 hours. 

An employer is considered to be “aware” of a COVID-19 incident where they have been notified of the positive diagnosis by either the person involved, or by DHHS.

Failure to notify is an indictable offence

The Regulations make the new requirements part of the existing notification obligations under Part 5 of the Occupational Health and Safety Act 2004 (Act), meaning that a failure to notify when required to do so is an indictable offence punishable by a maximum fine for a body corporate of $198,264 per offence. It also means the incident site preservation obligations in s 39 of the Act will apply until an inspector attends and releases the site, or the site is otherwise cleared to be disturbed by WorkSafe over the phone.

Proactive and reactive COVID-19 risk controls are more important than ever

The new requirement to notify WorkSafe of confirmed COVID-19 cases does not impact upon the ongoing obligation for employers to implement proactive risk controls to contain the spread of COVID-19 in the workplace, particularly as community transmission increases in a number of states.

Depending on the particular circumstances, these risk controls may include:

• requiring employees to work from home where able to do so
• increased cleaning protocols
• information and instruction on face coverings and hand-hygiene requirements, and access to necessary supplies
• social distancing strategies, and
• systems for monitoring the location of employees and contractors attending the workplace.

The new requirements also do not impact upon the obligation for employers to have clear protocols in place outlining the steps to take if a confirmed case is identified in the workplace, including notification, contact tracing and deep cleaning.

Safe Work Australia and DHHS each provide helpful resources to assist employers developing their risk control strategies to combat COVID-19.