New wave of COVID-19 lockdowns causes rise in mental health injuries

Prolonged COVID lockdowns are described as a ‘perfect storm’ for mental health injuries; combining ‘a health crisis plus an economic crisis, minus the normal human connections and support which fell away because of social distancing and other restrictions’. The evidence is mounting that mental health is suffering across Australia in this new wave of COVID lockdowns, among all age groups and professions. What sort of claims might arise from this mental health ‘catastrophe’, and where might they be directed?

Workplace Compensation Claim

According to The Australia Institute’s Investing in Better Mental Health in Australian Workplaces report from May of this year, as many as 98% of respondents across all industries report ‘significant changes’ to their work since the pandemic began, with 63% also identifying changes to their mental health as a result of these changed working conditions. The report relays the finding of the Australian Council of Trade Unions that 49% of home-based workers experienced mental health challenges during the crisis.

Workplace injury compensation covers workers for injuries sustained in the course of their work on a no-fault basis, including mental health injuries. It covers both the emergence of novel injuries and aggravation of existing injuries, providing for medical expenses, income replacement payments, and other costs associated with rehabilitation and retraining.

Workplace compensation only covers injuries where the worker’s employment was a significant contributing factor. This could present a barrier to claims of psychological harm which could be characterised as emerging from COVID 19 circumstances more generally, rather than from employment as an exceptional factor.

Moreover, the choice to maintain in-person work is frequently not available to employers under public health orders, and even when it is, the choice to send people home to work could constitute a reasonable administrative action taken in a reasonable manner, for which worker’s compensation legislation across the various jurisdictions provides an exception.

And yet, the possibility of liability for the mental health of workers has already been affirmed in litigation. In May of this year the Administrative Appeals Tribunal (AAT) ruled in favour of an employee’s claim for a psychological injury (burnout, anxiety, and depression, in particular) sustained during a pre-pandemic remote working arrangement. In that case, the employee’s work conditions, including an increase in working hours brought about by poor management and insufficient, negative supervision and management, aggravated by remote working circumstances, were accepted as significantly contributing to his condition, and that these circumstances were not the result of a reasonable administrative action.

While the Tribunal in this case took account of factors outside of the applicant’s work, it is not clear to what extent general COVID circumstance stressors might have led to a different outcome. What COVID circumstances will not do however is diminish an employer’s responsibility to minimise work-related risk to psychological health and safety as far as is reasonably practicable.

In the context of recent legislative trends towards the recognition of mental health, and clarifying the responsibilities of employers for the mental health of their workers, employer’s should be alert to the mental strain associate with remote work lockdown puts on their workers. Stress and anxiety also contribute as risk factors to other major at-home workplace injuries: musculoskeletal pain, such as arm, wrist, back, and neck pain, resulting, for example, from poor posture and prolonged periods of sitting.

The take-away would seem to be that employers should take exceptional measures to provide for the mental health of their employees in lockdown. Instituting mechanisms and procedures that help to diminish the mental strain of the current times will not just reduce the risk of mental health injuries and even physical injuries, studies show it will improve morale, workflow, loyalty, and a sense of community among the team. Examples of such mechanisms include:

• Communication mechanisms by call and video conference, rather than simply emails and texts
• Guidelines for daily routines and movement, which emulate the natural rhythms of the office (tea breaks, etc)
• Digital employee activities such as Zoom Yoga or Pilates classes
• The provision and recommendation of mental health services like Beyond Blue, the Black Dog Institute, etc.

The Federal Government has also released Mentally Healthy Workplace during COVID-19 guides and Comcare has provided an advice for employers in the management of these injuries.

If you have any questions in respect of this article, or require any legal assistance, please contact Bill McCarthy, Special Counsel, within the Litigation & Dispute Resolution team at BAL Lawyers.