Employer liabilities for COVID-19: a Q&A on navigating WHS risks and injury compensation

A recent multi-million dollar COVID-19 workers' comp case shows that employers need to be aware of the risk of sending workers into high-risk environments, and that their responsibilities aren't limited to the workplace, two senior employment lawyers say.

In this Q&A with OHS Alert, Macpherson Kelley principal lawyer John-Anthony Hodgens and special counsel Alan Girle look at COVID-related WHS and workers' comp issues, as Australia's two most populous states continue to struggle with "devastating" Delta variant outbreaks.

Work-related infections can have serious implications for organisations, and employers need to regularly risk assess activities with potential for exposure, they say.

Question: What types of COVID-19-related workers' compensation entitlements are available to workers across Australia?

Answer: In general, injured or ill workers can apply for workers' compensation payments to cover lost wages and medical and rehabilitation expenses, if their illness or injury occurred in the course of their employment, Hodgens and Girle say.

In some circumstances, COVID-19 may be a compensable workplace injury, as a disease is included in the definition of injury under workers' compensation legislation, they say.

Employers need to be aware that enticing or encouraging workers to be vaccinated or providing the opportunity to be vaccinated in the course of employment may also create a basis for workers' compensation liability.

Workers who are exposed to COVID-19 at work and subsequently contract the virus will have an entitlement to claim lost wages and medical expenses arising from the illness. Each claim will be considered on its individual merits.

Identifying how and when the virus was contracted can be difficult.

NSW and Western Australia have amended their respective workers' compensation legislation to create a presumption that COVID-19 is a work injury for those engaged in prescribed high-risk employment (eg. retail, healthcare, emergency services) when the disease was contracted.

These legislative amendments make it easier for workers in high-risk industries to claim workers' compensation for COVID-19. It reverses the onus of proof so that employers are required to rebut the presumption that the disease was contracted at work. To be eligible, workers must have worked in the course of their employment in the 21 days prior to their diagnosis with COVID-19.

The presumption will be defeated if an employer can prove the worker contracted COVID-19 in another way.

Safe Work Australia recently indicated that nationally, more than 1,200 COVID-19-related workers' compensation claims were lodged by May 2021 (see related article). Nearly 1,000 of these claims have been accepted. This demonstrates that the vast majority of claims are being accepted.

Q: In the recent case Sara v G&S Sara Pty Ltd [2021] NSWPIC 286 (see related article), a worker who died of COVID-19 complications was found to have been in the course of his employment when he contracted the disease while travelling to New York, because his employer "induced and encouraged" the activity. While the case was determined under NSW provisions, what guidance does it provide to employers generally?

A: "It is not surprising, given the beneficial nature of workers' compensation laws, that the Commission determined that [the worker's widow] was entitled to the lump sum death benefit of $834,000, in addition to other related expenses," Hodgens says.

(The worker's wife is also seeking compensation of more than US$11 million to cover the medical and hospital costs.)

"Cases historically point to a broad trend on the part of courts and tribunals to broadly interpret injuries or illnesses contracted in the course of work-related travel as being compensable," he says.

As a general rule, however, a worker bears the onus in a non-fault scheme of demonstrating that the illness was contracted in the course of employment, and this can be quite a challenge.

Girle says, "Employers need to beware of the risks associated with sending workers into high-risk environments specifically and more generally be taking prudent and reasonable measures to ensure the health and safety of their staff."

Hodgens notes, "This starts with a simple risk assessment being required for activities that are being contemplated and being prepared to keep regularly reviewing those risk assessments and any control measures deployed to minimise or eliminate any such hazards and risks."

The lawyers say employers that do not conduct suitable risk assessments need to be aware of the following non-exhaustive implications for their businesses:

  • prosecutions or regulatory enforcement action;
  • impacts on workers' compensation premiums in the event of claims being accepted;
  • the loss, temporarily or longer term, of critical staff and corporate knowledge; and
  • disruption to service delivery as a result of temporary loss of staff.

Employers should pay particular attention to the precise scope of what employees are being asked or directed to do – the risks of exposure to COVID-19 are obviously not limited to the workplace and employers cannot limit liability to the workplace, they say.

It has long been established that injuries suffered when travelling to and from the workplace or in connection with employment can be compensable; exposure to COVID-19 simply creates an additional risk for employers to properly manage.

As such, employers need to be considering whether travel is required or whether alternative means for undertaking the work required of an employee can be practically deployed.

Q: With NSW and Victoria in the grip of Delta outbreaks, what are the significant issues for employers in both the workers' compensation and WHS spheres?

A: With respect to WHS, employers have a general duty to ensure, so far as reasonably practicable, the health and safety of workers and other persons who may be impacted by the work carried out as part of their business or undertaking, Hodgens and Girle say.

With respect to COVID-19, particularly in light of the devastating effects and the rapid spread of the Delta variant, employers must take a dynamic approach in responding to the risks to ensure their duties are met.

To meet this duty an employer must put in place control measures to eliminate, or if not possible, minimise the risk to health and safety.

"We need to face facts. The science tells us elimination is not presently possible but minimising the likelihood of contagion and its severe health impacts is," Hodgens says.

"Efforts need to be directed to risk mitigation."

Girle notes this can be achieved by implementing higher order controls that minimise the risk. Such controls include vaccinations, working from home, rotating staff, social distancing in the workplace and wearing masks and reducing travel requirements or imposing strict protocols around the way in which travel is undertaken. Employers should adopt the hierarchy of controls and implement higher order controls first.

In NSW and Victoria, the ongoing lockdowns mean many employees who can are working from home, and for extended periods. Employers should be well aware by now that WHS laws apply regardless of whether employees are carrying out their duties at home or in the workplace.

Working from home may change or create different or new WHS risks and employers must consult with workers in advance of implementing control measures. As the lockdowns continue, and workers continue to work from home for extended periods, it is necessary for employers to continually monitor the risks of working remotely.

Girle notes that Safe Work Australia has identified considerations that may affect the risks of working remotely, including:

  • communication frequency and type between the employer and worker;
  • management of work program, workload, activities and working hours;
  • surrounding work environment;
  • workstation set up, such as desk, chair, monitors, keyboard, mouse and computer;
  • work practices and physical activity;
  • pre-existing injuries the worker may have;
  • mental health and wellbeing of the worker, and
  • other responsibilities the worker may have such as facilitating online learning for children or a caring role.

Of particular concern during these lockdowns is the mental health and wellbeing of workers, if not the population at large. The psychosocial hazards that may impact a worker's mental health while working from home include but are not limited to:

  • being isolated from managers, colleagues and support networks;
  • not having clear boundaries between home life and work life; and
  • low job control.

In line with the duties identified above, employers must take reasonably practicable steps to eliminate or minimise psychosocial risks arising from work, including when employees are working from home.

Steps employers can take to manage risks to employees' mental health include:

  • maintaining regular communication with workers and encouraging workers to stay in contact with each other;
  • providing information about mental health and other support services available to workers;
  • offering workers flexibility, such as with their work hours, where possible; and
  • responding appropriately to signs a worker may be struggling, like changed behaviour.

On workers' compensation matters, Hodgens and Girle say that when considering control measures, namely mandatory vaccination, employers should consider the risks of claims arising from any injury resulting from a vaccine that is mandated, enticed or encouraged in the workplace or in connection with employment.

They should be aware that recently, the Federal Government announced a no-fault indemnity scheme for COVID-19 vaccinations applicable to patients, health professionals and employers (see related article). The scheme commenced 6 September 2021 and is backdated to the start of the national vaccine rollout on 22 February 2021.

The scheme applies regardless of whether the vaccine was received at a GP, state-run health service, workplace or other approved healthcare provider.

In the event someone suffers a significant adverse reaction to a vaccination, causing injury and economic loss, the scheme will assist claimants through a no-fault claims process. The scheme will cover the costs of injuries above $5,000 due to a proven adverse reaction to a COVID-19 vaccination. Claims will be assessed by independent experts with compensation being paid based on the resulting recommendations.

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