COVID-19 and its potentially unanticipated consequences for WA employers

22 April 2020

The rapid spread of the COVID-19 virus through the Australian community raises questions as to the potential obligations and/or liabilities of employers for the virus contracted by their employees. Accordingly, we have considered the potential repercussions in the context of the Western Australian statutory workers compensation system.

The spread of the virus presents a particular risk for employers in circumstances where the virus may have been contracted by employees at work. The unpredictable nature and impact of the virus on individuals means that the resulting claims for employers may range from only minor claims requiring only a few weeks off work, to fatality claims.

COVID-19 would certainly be considered a “Disease” under the definition of the term in the Workers Compensation and Injury Management Act 1981 (WA) (the Act).

For such “Disease” to constitute an “Injury” under the Act, it:

  1. Must be contracted in the course of the employment; and
  2. The employment must contribute to a significant degree to the contraction of the virus/disease.

In the course of employment

Establishing the virus was contracted in the course of the employment may be difficult where the worker is likely to have been exposed to vectors of infection in a variety of different locations (some inside and others outside the workplace), and where symptoms are understood to develop between two and fourteen days post-infection.

If contracted outside of the workplace, questions may arise whether the employer encouraged or induced the worker:

  1. To be at the place where the exposure occurred; and/or
  2. To engage in or partake in a particular activity, during which exposure occurred.

Significant degree

In the context of a “Disease”, establishing that a worker’s employment was a significant contributor to the contraction of the virus will prove difficult for the same reasons.

Regard must be had, amongst other factors, the likelihood of the contraction occurring despite the employment, and activities of the worker not related to their employment.

Each claim needs to be considered on its merits, having regard to the specific circumstances of the infection.

Occupations on the front line

Occupations on the front line of the epidemic, where vectors of infection are likely present at work (such as medical treatment providers and other essential health services), raise a particular challenge for employers. In these circumstances, the “deeming” provisions in section 44 and Schedule 3 of the Act will arguably apply.

The “deeming” provisions provide that, where a worker is employed in an occupation or in a situation exposing them to infection by intermediate hosts of any communicable “Disease” (or by agencies transmitting any communicable disease), the “Disease” contracted by the worker shall be deemed to have been due to the nature of the employment, unless the employer proves the contrary.

The “deeming” provisions essentially reverse the usual onus of proof, and put it on the employer to prove the infection did not occur in the course of employment.

Common law risks

There are genuine common law risks to employers for employees who contract COVID-19 in the course of their employment, where the employee’s exposure was known by the employer to be likely.

Employers owe a non-delegable duty of care to their staff to provide a safe place of work.

That duty will be satisfied by an employer taking reasonable steps to avoid the risk of infection posed to its staff. Those reasonable steps depend on the circumstances of a particular case, but as a minimum require employers to direct their staff to observe and adhere to Government and health authority advice and warnings.

Collateral considerations

As a result of the Government response to COVID-19, an employer may permit or direct their staff to work from home.
Staff ‘working from home’ does not assuage employers of responsibility under the Act.

Given that such measures were likely encouraged or induced by the employer, even out of absolute necessity, any accident arising out of or reasonably incidental to the staff member working from home may be held to have occurred in the course of the employment (and result in compensation being payable).

There is a genuine risk that employers, in an effort to protect staff from contraction of the virus, may expose themselves to other claims as a result of accidents that befall staff whilst working from home.

Take Out

The COVID-19 outbreak creates a number of interesting issues for employers in the Western Australia.

Employers will need to tread carefully when balancing the interests of their businesses and the health and wellbeing of staff.

It should be remembered that efforts to protect staff from infection may in turn open employers up to unanticipated claims (unrelated to the virus but consequent upon the response to it) resulting from ‘working from home’ arrangements.

This article was written by Matthew Thickett, Partner and Marino Gismondi, Special Counsel.

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