Any worker who suffers an injury arising out of or in the course of employment may be entitled to workers compensation benefits, but what if it is a disease like COVID-19?
A virus (like COVID-19) may be considered a disease under the Workers Compensation Act 1987. To receive workers compensation for a disease, a worker would need to establish that the virus was a “disease” contracted in the course of employment, and that employment was the main contributing factor to the contracting of the disease.
In 2020, the NSW Government introduced laws which meant that workers in certain types of employment who contract COVID-19, are presumed to contract the virus in the workplace. The types of employment to which the presumption applies include:
- the retail industry (other than businesses providing only online retail);
- 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 only on-line teaching services);
- 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; and
- the cleaning industry.
To satisfy the above presumption, workers must have worked in the employment in the 21 days prior to their diagnosis with COVID-19. The presumption will not apply if it can be proved the worker contracted COVID-19 in another way, however this is a matter for the employer and/or insurer to prove.
What if I work in an industry not included in the above list but I believe I contracted COVID-19 in the workplace?
Given that your employment does not fall within the ‘prescribed employment’, it is still possible to bring a claim, however you will be responsible for proving that you contracted COVID-19 during the course of your employment. This will include obtaining evidence relating to:
- A full history as to the nature of your work and employment;
- A full history of all your movements including social and employment related contacts in the weeks leading up to a positive test;
- Any COVID-19 tests undertaken by you and/or anyone you had contact with leading up to the positive test;
- Consideration of expert evidence as to the incubation period based on the history provided by you and an opinion on the likely exposure date.
If you believe you have contracted COVID-19 at work, you should notify your employer immediately so that you can begin to receive workers compensation entitlement. Your employer will notify the insurer within 48 hours of receiving notification of a workplace injury. The insurer must commence weekly payments of compensation within 7 days of notification unless they have a reasonable excuse.
The amendments will provide weekly benefits and medical treatment to workers who are unable to work as a result of COVID-19. Dependents of essential workers who have died from COVID-19, will be entitled to bring a claim for death benefits.
If you think you might have a compensation claim for contracting Covid 19 at work, call our Compensation Team now on 4324 7699 for free advice.
