Coronavirus: WHS and workers compensation

Comcare has released guidance for workers and employers regarding work health and safety (WHS) and workers compensation in relation to the coronavirus (COVID-19) outbreak. The information includes advice about WHS obligations and compensation coverage, for persons conducting a business or undertaking (PCBUs) and employees. Workers compensation is a form of insurance payment to employees if they are injured at work or become sick due to their work.

Workers compensation is governed by individual states and territories; employers and employees concerned about workers compensation in light of the COVID-19 outbreak can refer to their state’s regulator. Workers compensation regulators in various states and territories include: WorkSafe ACT, the State Insurance Regulatory Authority (New South Wales), NT WorkSafe, Norfolk Island Workers Compensation Agency, WorkCover Queensland, ReturnToWork SA, WorkCover Tasmania, WorkSafe Victoria and WorkCover WA. Australian Government employees and employees of organisations which self-ensure under the scheme should contact Comcare (Commonwealth).

The guidance also provides information about the coverage of viruses such as COVID-19 under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act); for a disease to be covered, a determining authority must be satisfied that employment contributed to the employee contracting the virus. If the employee’s work places them at greater risk of contracting the virus, such as by travelling to an area with a known viral outbreak, the significant contribution test may be easier to meet. Information about coverage while travelling overseas for work, and further employer support, is also provided under the guidance released by Comcare.

Exposure to COVID-19 may present a health and safety risk to workers and other persons at a workplace, which must be mitigated by monitoring official advice, such as updates from the Commonwealth Department of Health, and reviewing policies and measures for infection control, including educating workers on best practice. PCBUs must also mitigate the risks of exposure to COVID-19 by advising workers to self-isolate for 14 days if they have travelled to certain overseas destinations, or been in close contact with anyone confirmed to have the virus. Workers must also take care of their own health and safety, by washing their hands frequently, to protect against infections.

A virus like COVID-19 could be considered under the disease provisions of the SRC Act. For coverage to exist, a determining authority must be satisfied that the employment significantly contributed to the employee contracting the virus. As it is difficult to accurately determine exactly when and where the virus was contracted, it can be challenging to determine if employment significantly contributed to the virus. However, where an employee’s employment puts them at greater risk of contracting the virus, the significant contribution test may be easier to meet. For example, if employment involves travel to an area with a known viral outbreak, activities that include engagement or interaction with people who have contracted the virus, or activities that contravene Department of Health recommendations. Each claim must be considered on its individual merits, circumstances and evidence in relation to the claim.

The significant contribution test applies to employees working overseas and those within Australia. For locally engaged overseas employees (employees engaged overseas to perform duties overseas), different legislative considerations will apply. Queries should be directed to Comcare. Employers should provide assistance and guidance to employees who are exposed to the virus as part of their employment, and are making a workers compensation claim. Employers should also support the health and recovery of their workers through early intervention while the claim process is pending.

As a national policy body, Safe Work Australia does not have a role in determining coverage or eligibility for benefits in workers compensation schemes. This is the responsibility of the Commonwealth, states and territories. While workers compensation arrangements differ across schemes, there are common threshold requirements that would apply in the case of COVID-19. The worker must be covered by the scheme, either as an employee or a deemed worker; the worker must have an injury, illness or disease covered by the scheme; and the injury, illness or disease must have arisen out of, or in the course of, their employment.

While the spread of the virus is contained, it may be easier to establish where and when contraction occurred (eg, if a worker travelled to a high-risk area with a known COVID-19 outbreak, or interacts with someone who has contracted the virus). However, as the virus becomes more widespread, establishing the degree of contribution of a worker’s employment to their contraction of the virus would become more difficult. Whether a claim for workers compensation for contracting COVID-19 is accepted will be a matter for the relevant workers compensation authority, applying their jurisdiction’s workers compensation laws.

State-specific guidance

Queensland

WorkCover Queensland is also monitoring the progress of COVID-19, following the advice and recommendations from Queensland Health. Any new claims in relation to COVID-19 will be determined and managed by a centralised team at WorkCover Queensland, in line with the Workers’ Compensation and Rehabilitation Act 2003. WorkCover Queensland will work with workers, employers and treating providers to determine how workers have sustained the condition and make decisions in accordance with the legislation.

New South Wales

The COVID-19 pandemic has also brought business continuity planning into sharp focus for the New South Wales (NSW) State Insurance Regulatory Authority (SIRA). A virus such as COVID-19 may be considered under the disease provisions of the Workers Compensation Act 1987; section 4 of the Act defines ‘injury’ to include disease injury, contracted in the course of employment. As it is difficult to determine the exact location and time of contraction, each workers compensation claim would need to be considered on its individual merits.

South Australia

SafeWork SA advises businesses to identify hazards in the workplace, and to keep up to date with the latest information and advice about COVID-19 to ensure that any actions taken are appropriate. Employers must review and promote their policies for infection control and ensure that workers are aware of the isolation/quarantine periods in accordance with advice from the Australian Government Department of Health. Employers should also provide clear advice to workers about the steps to take if they become unwell or have the symptoms of coronavirus. Employers must provide regular updates to employees about the situation, and any changes to organisational policies or procedures.

Western Australia

Workers based in Western Australia (WA) may be entitled to compensation if they contract COVID-19 at work. However, for any worker to be eligible for compensation in WA, a disease must have been contracted in the course of employment, with employment a significant contributor to the contraction of the disease. Each claim would be considered on its individual merits, having regard to the individual circumstances and evidence of each claim. To prevent the spread of COVID-19, WorkCover WA encourages stakeholders to refer to the Department of Health website for practicable measures.

Image credit: ©stock.adobe.com/au/Mongkolchon