Could COVID-19 trigger a workers’ compensation claim?

Is COVID-19 considered an ‘injury’ under the various Workers’ Compensation Laws?

COVID-19 is likely to be considered a disease under the various workers’ compensation laws of the Commonwealth, States and Territories.

As all jurisdictions operate independently, the definition of an injury and the required causal link with employment also differs. In general, for a COVID-19 infection to be compensable, a worker must demonstrate that:

  1. They suffered an ‘injury’; and
  2. The ‘injury’ arose “out of or in the course of employment”.

The definition of ‘injury’ generally includes a disease such as COVID-19.  However, a disease is only considered to have arisen “out of or in the course of employment” if employment was the main, significant or substantial contributing factor to contraction of the disease.

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The need to establish connection between the work performed and contraction of COVID-19

For a worker to be entitled to compensation for COVID-19, a worker must show a connection between the work they performed in the course of employment and the contraction of COVID-19. The determination of liability will differ across jurisdictions, depending on the level of contribution by an employer as highlighted below:

Jurisdiction Contribution of employment to injury Relevant Act
NSW ‘the main contributing factor’ s4, Workers Compensation Act 1987
Vic ‘significant contributing factor’ s40(2), s40(3), Workplace Injury Rehabilitation and Compensation Act 2013
QLD ‘significant contributing factor’ s32(1), Workers’ Compensation and Rehabilitation Act 2003
WA ‘a contributing factor and contributed to a significant degree’ s5, Workers’ Compensation and Injury Management Act 1981
SA ‘If it arises from employment’ s7 Return to Work Act 2014
TAS ‘major or most significant factor’ s3(2A), Workers Rehabilitation and Compensation Act 1988
NT ‘as being related to employment of a particular kind’ s4(6), Return to Work Act
ACT ‘substantial contributing factor’ s31(2), Workers Compensation Act 1951
Comcare ‘to a significant degree’ S5B, Safety, Rehabilitation and Compensation Act 1988

In some circumstances COVID-19 may indeed be a compensable workplace injury as a disease. Due to the nature of viruses, it may be difficult initially to determine that employment was the main contributing factor. As exposure to COVID-19 can occur in public settings, questions may arise as to the exact time and place of contracting the virus.

Each claim will be assessed on its individual merits and consideration may be given to (but not limited to):

  • Workers who travelled to an area with a known COVID-19 outbreak,
  • Workers that carry out activities that include engaging or interacting with people who have contracted COVID-19.

The claims process for COVID-19 is no different to any other workers’ compensation claim. Each claim is considered on its individual merits, having regard to the individual circumstances and relevant evidence.

With the current restrictions in place, is an injury that occurs whilst working at home covered?

In response to attempts to minimise exposure to, and the spread of, COVID-19 many workers are working from home (either directed by employers or government authorities and/or having chosen this option where it was made available).

Workers are generally covered for workers’ compensation when they are working from home. Whether a worker is entitled to compensation for an injury suffered whilst working from home will depend on whether the injury arose out of or in the course of employment or whilst the worker is acting under the employer’s instructions.

Each claim is considered on its individual merits, having regard to factual and medical circumstances and relevant evidence.

What about self-insured employers?

Employers who hold a self-insurance licence will be required to determine liability on any claims they receive in accordance with their normal processes and in a manner that is consistent with the relevant workers’ compensation legislation.

Self-insured employers may wish to obtain independent legal advice prior to making any claims determinations.  In respect of any claim that is notifiable under the excess of loss insurance, such as a fatality or a claim expected to result in prolonged incapacity for work, consultation with the excess of loss insurer will also be required.

Self-insured employers should note that each individual claim may be subjected to a separate deductible under their excess of loss insurance and this will depend on the specific wording contained in the policy and the specific circumstances surrounding the claim.

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