The health and welfare of workers are of paramount importance to employers at all times – not just because the workforce is now dealing with the COVID-19 pandemic. But if a worker contracts COVID-19, employers, claims agents and the regulator may need to consider issues of liability for compensation not traditionally addressed under the Victorian regime. This article examines the potential scope of that liability.
In Victoria, workers compensation liability falls under two general headings – statutory benefits and common law damages. The former are “no fault” benefits – that is, assuming entitlement is established under the legislation, they are paid regardless of any fault on the part of the employer. Common law damages, however, are only paid where fault, being a breach of a duty of care, is established against the employer or third parties. Workers can only bring a proceeding for damages where they have cleared the serious injury threshold under the legislation.
A worker will be entitled to statutory compensation under section 39 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Act) if there is caused to that worker an injury “arising out of or in the course of any employment”. Traditionally, “arising out of” or “in the course of” require a causative or temporal connection with employment respectively, though there is some overlap.
For the purposes of this provision, an injury includes a disease contracted by a worker in the course of the worker’s employment (whether at, or away from, the place of employment). A disease includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development. COVID-19, which is the respiratory condition caused by the novel coronavirus, will be a disease for the purposes of the Act.
Under section 40 of the Act, there is no entitlement to compensation in respect of a disease contracted by a worker in the course of the worker’s employment (whether at, or away from, the place of employment) unless the worker’s employment was a “significant contributing factor” to the disease. In determining whether a worker’s employment was a significant contributing factor to an injury, the Act requires that the following be taken into account:
- The duration of the worker’s current employment;
- The nature of the work performed;
- The particular tasks of the employment;
- The probable development of the injury occurring if that employment had not taken place;
- The existence of any hereditary risks;
- The lifestyle of the worker; and
- The activities of the worker outside the workplace.
How all these provisions will apply if a worker contracts COVID-19 will of course depend upon the factual matrix underpinning the claim. The entitlement to compensation of a health worker who contracts the disease as a result of treating patients with COVID-19 at a hospital will be clear. But the entitlements of workers outside the health profession will be more difficult to assess. First, there will be medical causation issues because it will be very difficult for workers to prove where and how they contracted the virus. Next, if a worker proves she contracted the virus at work from a colleague who was asymptomatic but whom later tested positive, the analysis of the factors in relation to establishing employment as a significant contributing factor may tend against an entitlement to compensation.
Unfortunately, the same issues will need be considered in respect of the dependants of workers who die from COVID-19 for the purpose of dependency claims and death benefits. The connection between the COVID-19 and the deceased’s death will still be required.
For the most part, workers who contract COVID-19 and who establish the requisite connection with employment are unlikely to become sick enough to reach the serious injury threshold needed to commence a proceeding for damages.
If they do establish serious injury or if, tragically, they die from the disease and their dependants or relatives wish to bring a claim for dependency or nervous shock, such claims will succeed if the injured worker, or the deceased worker’s dependants or relatives, establish that the employer breached its duty of care at common law or under statute to the worker. For a finding of breach, the employer must have failed to take reasonable steps to prevent the reasonably foreseeable risk of injury – in this case, the contraction of COVID-19.
The most important factor in assessing breach of duty is foreseeability of risk. In assessing foreseeability, the concept of reasonableness will be paramount. For example, if an employer demanded that its workers attend the workplace during the pandemic but the employer failed to take reasonable steps to ensure social distancing – for example, forcing workers in a call centre to continue to sit in close proximity to each other – then a court is likely to find a breach of duty on the part of that employer. This is because the risk of contraction is likely to be reasonably foreseeable in this scenario.
Employers should ensure their responses to the pandemic are reasonable. The task will not be easy for common law purposes – particularly where a large proportion of the workforce is working from home, where employers have less ability to control the environments of workers. Regard should be had to the health directives released by the Commonwealth and State government and to, for example guides published on the WorkSafe website. Employers should ensure they are reasonable systems in place to protect their workers within the frameworks of the governments’ directives and the authority’s guidelines.
This article was written by David Guthrie, Partner.