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The recent decision of Sara v G & S Sara Pty Ltd [2021] NSWPIC 286 (the Sara Decision) confirms that if an employee contracts COVID-19 throughout the course of their employment, an employer may be held responsible.
 
In the Sara Decision, Mr Sara was required to travel to New York from Sydney in early 2020. On 23 July 2020, he was admitted to a New York Hospital and later died on 21 November 2020 due to acute respiratory complications from COVID-19.
 
The Commission was required to consider who Mr Sara was employed by at the time he contracted COVID-19 due to a complex interrelationship between:

  1. Stoneglass Dental Laboratory Pty Ltd (Stoneglass Australia), being Mr Sara’s Australian employer; and
  2. Stoneglass US (Stoneglass United States), being the US counterpart.

 Ultimately, the Commission held that it was more likely than not that Mr Sara contracted COVID-19 through the course of his travel to New York because:

  1. the travel exposed Mr Sara to a significant number of people at a stage where the COVID-19 outbreak was spreading rapidly;
  2. Mr Sara was not willing to wear a mask in his travel; and
  3. of the medical evidence provided around the potential incubation period.

The Commission was then required to consider if Mr Sara contracted COVID-19 in the course of his employment with Stoneglass Australia. The Respondent in this matter sought to argue that Mr Sara was working solely for Stoneglass United States when he contracted COVID-19.

Ultimately, the Commission held that Mr Sara contracted COVID-19 in the course of his employment with Stoneglass Australia and the injury was found to have occurred on 23 July 2020, being the date Mr Sara returned a positive COVID-19 test result.

In light of the above decision, it is important to remind employers of their obligation to provide a safe working environment for their employees, including appropriately managing the risks associated with contracting COVID-19.

The Sara Decision adds an additional level of complexity to the question of whether or not mandatory vaccinations are reasonable in an employment relationship. If you require assistance with compliance with your Work Health and Safety Obligations, or would like further information around mandatory vaccinations, please do not hesitate to contact our Workplace team.

This article was written by Ebony Archer, Associate.  For further information please contact Danny Clifford, Director.