Shops around Australia may well be back in business, but it’s clear COVID isn’t going anywhere, creating a climate of uncertainty that’s dampening the economic recovery. As new variants, like BA.2 emerge, they threaten to keep not just customers, but retail workers, at home, putting major holes in retailer’s rosters around the country.

Now new research, commissioned by med-tech company vaxxvault, has found more than 80% of Australians are reluctant to return, or stay in, a workplace which doesn’t follow a clear set of COVID-safe protocols. And when it comes to Australians who work in the retail, more than 68% seem to believe that such protocols are lacking, because their workplace has no COVID testing program in place.

Bottom line – more than two thirds of retailers don’t seem to be doing the one thing that their staff actually want them to do to feel safe at work: developing a clear plan to protect them.

Considering retail has been one of the most heavily affected sectors by the onset of the pandemic, it is surprising to see such a high percentage of workplaces are not responsibly employing a testing program that would ultimately help to keep employees in their roles and ensure the sector can surge forward.

And it is equally surprising that so many retailers seem to have given so little thought to the legal risks.

What legal risks, you ask? Surely, if an employee catches COVID-19 at work, they can just make a claim for workers compensation under Work Cover, which operates under a no-fault principle.

Well, that’s true. But what if one of your staff members happen to catch COVID and firmly believes that your failure to take safety measures is directly, and solely, to blame?

In Australia, it has long been established that employers have a duty to maintain a safe workplace as far as is reasonably practicable, and can be liable in court if they don’t.

The only question is what, exactly, constitutes ‘reasonable practicable’ in the context of a worldwide pandemic? What sort of duty do retailers owe to their staff to ensure that they don’t catch COVID? Come to that, what duty to they owe to their customers? Or to, say, a vendor who comes by to drop off some goods and goes away with a ghastly disease?

If any of these people got seriously ill, could any of them successfully sue?

Chances are, we’ll find out soon. All over the world, we are seeing COVID-related negligence suits being filed in countries like Israel, Norway, Denmark and Singapore. In the US, meanwhile, we have seen a case where someone attended work under the expectation that his colleagues had been vaccinated and tested, then went on to contract COVID and transmit it to a family member who, yes, tragically died.

The only defence the employer was able to put forward was that they did everything that they reasonably could to ensure a safe working environment. But because they had left no audit trail or evidence, they had no way to actually demonstrate that this was so.

In a lawsuit, it’s worth remembering, employers aren’t just responsible for providing a safe work environment. They’re also responsible for proving it.

Now, in light of that, consider this. Of the 1,000 Australian workers surveyed, 20% haven’t even been asked by their employer if they have been vaccinated. A further 25%, meanwhile, have asked, but not then bothered to make a record or copy.

Almost half of retailers, in other words, may be leaving themselves wide open to a major lawsuit.

Is there a chance that you’re one of them?

Gregory Johnson is CEO and co-founder at vaxxvault, a secure, simple and scalable cloud-based platform that tracks and organises workforce vaccination and testing data.