COVID-19 (Coronavirus) is a pandemic plaguing societies worldwide. Older citizens, and those with underlying medical problems like cardiovascular disease, diabetes, chronic respiratory disease, and cancer are more likely to develop serious illness, however the catastrophic spread of the virus will ensure that none in society are immune. This has led to a significant downturn in the economy and has plagued some employment sectors. It has also significantly affected our health industry and those working in our hospitals and medical centres. This in turn will no doubt impact the NSW workers compensation system.
Employers state-wide will be concerned about whether COVID-19 will lead to a surge in workers compensation claims. This is a fair concern for most workplaces, as the contraction of an infectious disease due to a virus entering the body during the course of employment, is a compensable injury.
To be eligible for benefits under the NSW workers compensation legislation, a worker needs to prove they suffered an injury in accordance with section 4 of the Workers Compensation Act 1987 (1987 Act). The worker must also prove employment was the substantial contributing factor (section 9A) or main contributing factor (section 4(b)) to the contraction of the injury or disease.
Determining liability for the claim should be assessed on a case by case basis and following receipt of specialist medical evidence. Essential workers, such as those in our health care system, are likely to present as higher risk than those who work in more isolated workplaces.
COVID-19 can be transmitted through the population generally, so identifying the exact time of contraction may be difficult to prove in workers compensation cases unless there is a cluster in a specific workplace.
However, the claimant only needs to prove on the balance of probabilities that the infection arose out of, or in the course of employment. Claimants are not required to prove with scientific certainty that the infection was caused by the employment.
It is likely in these circumstances that COVID-19 will be considered compensable where there is an absence of evidence of any other potential source of infection.
Liability flowing from cases where workers have contracted Coronavirus will result in a minimum of 14 days’ time lost from work during isolation as well as the cost of treatment, although at this stage, there is no known treatment being provided to those with minor symptoms. For those with more severe symptoms, time lost from work may stretch into months and include specialist and ICU care. In the worst case scenario, some may result in fatalities.
Secondary or consequential conditions such as lung impairment and psychological issues arising from a fear of contraction may also arise. Again, any liability for these issues will only be determined following review of specialist medial opinion.
Working from home arrangements
The majority of workplaces in NSW have allowed workers to work from home in an effort to combat and limit exposure to COVID-19. Although these arrangements may lower the risk of a claim for COVID-19, these arrangements still open an employer to workers compensation claims should a worker suffer injury.
The risks associated with working from home include the risk of contracting COVID-19 through exposure from a family member or if they leave their home on a regulated break (morning tea or lunch).
Other risks associated with working from home include a worker sustaining injury due to their work station not being ergonomically arranged, or a worker feels cut off from the workplace or not supported by their employer and work colleagues.
Where working from home arrangements are in place, steps should be taken to ensure the ergonomic set up of the worksite. Time should also be set aside each day to ensure that workers working from home can touch base with their colleagues and supervisors to discuss issues and check in with their mental health.
As of 3 April 2020, New South Wales Minister for Customer Service, Victor Dominello has asked SIRA to review a Bill drafted by Greens Senator, David Shoebridge to exempt essential workers from having to prove the source of any COVID-19 infection. This would result in these workers not having to prove that employment was the main or substantial contributing factor to the infection in accordance with sections 4 and/or 9A of the Workers Compensation Act, 1987 (NSW). If these worker’s tested positive and required isolation and/or medical treatment, their entitlements to workers compensation would be automatically guaranteed without any investigation into the circumstances of their contraction of the disease.
It remains unclear what factors would be determinative of someone being an ‘essential’ worker but would no doubt include health care workers, paramedics and possibly child care educators and hospitality workers, particularly those working in hotels in which members of the public have been housed on their return from overseas. Ultimately, the issue of who is an ‘essential’ worker will depend on the definition given by Parliament.
If passed, these workers would not need to prove that they contracted the virus whilst undertaking their employment duties to be eligible for weekly benefit compensation and medical expenses. Dependants would also be entitled to claim death benefits.
Workplaces in NSW must ensure that during this time, they are taking reasonable measures to comply with work health and safety obligations, conduct risk assessments, consult with employees regularly on newly developed and/or developing contingency measures, to minimise any health and safety risks to employees. This in turn, should minimise the risk of any liability arising from COVID-19.
Employers should, where possible, attempt to cater to flexible working arrangements, and if they cannot, should attempt to offer flexible working arrangements to employees with pre-existing health conditions, so as to avoid exacerbation or the development of psychological issues.
Businesses should also utilise employee assistance programs, ensuring that workers are aware of and able to access these services. Employees may suffer from the emotional impact of COVID-19 and its effect on workloads, redundancies, isolation and financial stressors.
Ultimately, with open communication and support, the effects of Coronavirus on the compensation system can be managed and minimised.
This article was written by Jenne Tzavaras, Partner and Melissa McDonald, Senior Associate.