Workers Compensation in a COVID-19 world

As the COVID-19 pandemic continues to impact people’s lives, the risk of infection in the workplace and how this is, or is not, captured by existing worker’s compensation requirements, is a matter governments are considering.

In recent weeks there has been some direction provided however it is expected that more information will become available over the coming months.

The following information may assist members to understand the potential implications for worker’s compensation from COVID-19 in the workplace.

If I contract COVID-19 at work will I have an entitlement to compensation?

Workers’ compensation arrangements differ across the country, however there are common threshold requirements that would apply in the case of COVID-19 including:

• that the worker is covered by the scheme, either as an employee or a deemed worker, 
• that they have an injury, illness or disease of a kind covered by the scheme, and 
• that their injury, illness or disease arose out of, or in the course of, their employment.

Compared to work-related physical or mental injuries, it is more difficult to prove that a disease was contracted in, or caused by, attendance at a particular workplace. In the case of a virus such as COVID-19, establishing the time and place of contraction may become increasingly hard.

Whether a claim for workers’ compensation for contracting COVID-19 is accepted will be a matter for the relevant workers’ compensation authority, applying their jurisdictions’ workers’ compensation laws. Workers’ compensation authorities will consider each claim on its merits, with regard to the individual circumstances and evidence.

HIA is aware that there have been a number of successful workers compensation claims made on the basis of either contracting COVID-19 or suffering mental illness as a result of the pandemic.

What changes have been made in NSW?

On 14 May NSW amended its worker’s compensation arrangements to identify COVID-19 as an occupational disease for workers compensation purposes. This means that if a worker, who works in the construction industry (amongst a list of other prescribed industries), contracts COVID-19 or is taken to have contracted COVID-19 the worker is entitled to make a workers compensation claim. Such claims can be made even if the disease was contracted prior to the change being made.

These amendments mean that unless proved otherwise, it is presumed that COVID was contracted by the worker in the course of their employment and that their employment was a substantial or main contributing factor to contracting the disease.

How can I keep my workers safe?

Implementing measures on-site and in indoor workplaces that comply with the COVID-19 health and hygiene requirements is a crucial part of keeping your workers safe from COVID-19 and stopping and slowing the spread.

HIA recommends businesses seek the support of staff to download the COVIDSafe app to assist them to in keeping a personal record of their movements during the working day.

Businesses should also continue to apply the HIA Making space on site guidelines relevant to the type of work you do and continue to require any person entering your building sites complete the HIA Safescan COVID-19 Site induction.

HIA also recommends businesses use the Making space on site Guide for a COVID-19 safe workplace to help identify the steps necessary to protect your workers in off-site roles and support everyone safely return to the office, the construction site, factory or the showroom.

Interaction of Workers Compensation and JobKeeper Payments

Is an employee on workers compensation entitled to JobKeeper Payments?

If your employee is fully compensated by workers compensation payments, i.e. they are fully incapacitated and unable to work, they will not be eligible for the JobKeeper Payment if the business is eligible for this wage subsidy.

However in cases were the employer has an obligation to pay some component of their employees’ wages in addition to workers compensation payments, the employee will then be eligible for JobKeeper payments.

Will JobKeeper payments be considered as part of the wage calculations for workers compensation premiums?

Given that workers compensation premiums are calculated based on the wages paid to employees, all states and territories, apart from the ACT, have announced that any Jobkeeper payments will not affect premium calculations.

Outlined below are a number of scenarios involving the JobKeeper payments and how they interact with the workers compensation system.

If you have any further questions or concerns contact a HIA Workplace Adviser on 1300 650 620 or email enquiry@hia.com.au