NSW moves to protect essential workers – Emergency Measures legislation passed

18 May 2020

On 13 May 2020 the COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Bill 2020 (NSW) was passed by both houses NSW Parliament with the effect of introducing a new section into the Workers Compensation Act 1987 (NSW) to deal with claims related to COVID-19. The changes are effective 14 May 2020.

The newly introduced section 19B provides that, if a worker in certain categories of employment is diagnosed with COVID-19, it is presumed (unless the contrary is established) that the disease was contracted in the course of employment and that employment was a substantial contributing factor.

The provision can be relied on by workers in the retail, health care, disability and aged care facilities, educational institutions (including pre-schools, schools and tertiary institutions), police and emergency services, refuges, halfway houses and homeless shelters, passenger transport services, libraries, courts and tribunals, correctional centres and detention centres, restaurants, clubs and hotels, the construction industry, places of public entertainment or instruction (including cinemas, museums, galleries, cultural institutions and casinos), the cleaning industry, and any other employment to be prescribed by the regulations.

Employers can resist claims for workers compensation for such workers only if it can establish the worker contracted the disease outside the course of employment.  It remains to be seen how the reversed burden of proof will operate in practice, given the narrow timelines afforded to employers and insurers to determine liability for claims of compensation.
As loosened restrictions start to take effect on 15 May 2020, employers in essential industries must be prudent in ensuring workplaces adhere with and enforce public health guidelines. The changes in legislation ought to prompt employers in essential industries to consider how they can best care for their workforce, as the amendments have pre-empted that regulations may be made which use an employer’s claim history of COVID-10-related claims to calculate policy premiums.

This article was written by Joanna Apostolopoulos, Partner and Audrey Chan, Associate.​

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