12 Jun 2020Presumption that coronavirus contracted in the course of employment
Workers in New South Wales in certain industries will now enjoy greater protection under the Workers Compensation Act if they contract coronavirus during the course of employment.
Under the Covid-19 Legislation Amendment [Emergency Measures – Miscellaneous] Bill 2020 (NSW), section 19B of the Workers Compensation Act 1987 has been amended, with effect from 14 May 2020.
Where a worker in prescribed employment contracts Covid-19, it is presumed that the disease was contracted by the worker in the course of employment and that the employment was a substantial contributing factor to contracting the disease, or in any other case, the main contributing factor to contracting the disease.
What is “prescribed employment”?
The Workers Compensation Act contains a list of industries whose workers are defined as being in “prescribed employment”.
- the retail industry (other than businesses providing online retail only)
- the health care sector, including ambulance officers and public health employees
- disability and aged care facilities
- educational institutions, including pre-schools, schools and tertiary institutions (other than establishments providing online teaching services only)
- police and emergency services (including fire brigades and rural fire 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
This list extends to include any other employment prescribed by the regulations.
Workers relieved of evidential burden of proving causation
This change is a win for NSW workers in the industries listed above, who are relieved of the evidential burden of proving causation on the contraction of the disease. It addresses the causation application of section 4 and section 9A of the Workers Compensation Act. (For more information please see NSW emergency service workers have their own set of workers compensation rights.)
The provisions apply to exempt workers and non-exempt workers. Exempt workers include police, fire and ambulance personnel. These workers already have a different regime for statutory compensation under the NSW Act.
Lump sum payment for permanent impairment
If the contraction of Covid-19 results in a permanent impairment to the respiratory system, or any other bodily system for that matter, workers may be entitled to a lump sum under section 66 of the Workers Compensation Act for permanent damage done to the body as a result of contracting the virus.
In the case of exempt workers, ie police, fire and paramedics, there may also be a payment for pain and suffering.
Death benefits payable if worker dies of coronavirus
The amendment to the Act is a positive development for NSW workers who contract coronavirus, as they will be able to claim workers compensation for their time off work and all medical treatment, plus travel expenses and medication.
In the unfortunate circumstance that a worker passes away as a result of coronavirus, death benefits are also payable under the Act under section 25.
There have been over 200 notifications of claims for workers contracting Covid-19 in NSW. Any prescribed worker who experiences symptoms of Covid-19 should seek legal advice for a full explanation of their rights and entitlements under the NSW Workers Compensation Act.
For more information, please see our October 2021 article Can you claim workers compensation for Covid if you’re infected at work?
