Changes to NSW Workers Compensation Legislation: Employment is now presumed to have caused workers to contract COVID-19

July 23, 2020
FCB Workplace Law

Industry Focus

Health & Aged Care

By Ceri Hohner, Associate at FCB Workplace Law  

Not a single business in Australia remains unaffected by COVID-19, in one way or another. And with Stage 3 Restrictions recently re-implemented in Victoria, the threat of infection in your workplace or workforce remains a very real possibility that businesses should be prepared for. 

In recognition of the heavy legislative burden on employers to ensure their employees’ health and safety while at work as far as, is reasonably practicable under existing work health and safety laws, the NSW Government has modified the workers compensation legislation to place fault on the shoulders of certain employers where their employees contract COVID-19.  

This change involves inserting a ‘presumption’ into the Workers Compensation Act 1987 (WC Act) that if a worker in a particular industry tests positive for COVID-19, it is presumed that the disease was contracted in the course of their employment and that the employment was the main contributing factor to contracting the disease: in other words, setting up all the requirements for a successful workers compensation claim.  

This presumption can be rebutted by the employer proving otherwise, but we don’t expect this would occur in anything but the rarest of circumstances, considering the inherent difficulty in proving when and how an employee contracted coronavirus that can be transmitted through objects and materials by any member of the public. It should also be noted that casual employees are also included in this presumption, as long as the employee worked at least one day in the 21 days before the virus was contracted, which is a very generous time frame.  

The industries to which this presumption will apply include disability and aged care facilities and the health care sector, in addition to a number of non-health related industries such as retail, education and construction.  

As such, this amendment to the Workers Compensation Act has significant implications for NSW providers, particularly where we have already, unfortunately, witnessed an outbreak in an aged care home in April/May 2020.  

Further presumptions have also been implemented which will affect the employees’ entitlements to workers compensation, including an assumption that an employee with COVID-19 is incapable of performing work, and that the date of the ‘injury’ is the day of diagnosis or death, whichever is earlier. 

The amendments to the legislation do not change an employer’s obligations to ensure the health and safety of all employees in the workplace as far as it is reasonable to do so, but they do create heavier implications for the business where any employee does contract  COVID-19.  

Providers should continue to take all reasonable steps to prevent the risk of infection of COVID-19 in their workplaces, including maintaining vigorous health and hygiene practices, practising social distancing where possible, limiting contact with visitors and third parties as appropriate, and encouraging staff to install the COVIDSafe App for use within and outside of working hours (although it should be noted that it is unlawful to force or compel an employee to use the app). 

Where an employee makes a claim for workers compensation on the basis of contracting COVID-19, providers should seek legal advice and speak to their insurers about their options for contesting the claim, if appropriate to do so.  

South Australia has also proposed a similar amendment to its own Return to Work Act 2014 (SA), but has faced heavy resistance and to date, this change has not yet been implemented in any other Australian State or Territory than NSW.  

Have a question about workers compensation or workplace health and safety? Contact FCB Group and one of our experts can assist you.