A new bill dealing with emergency measures for a range of legislative instruments, the COVID-19 Legislation Amendment (Emergency Measures Miscellaneous) Bill 2020, passed both houses of NSW parliament on 14 May 2020.
Among the changes to various legislative instruments contained in the bill was a new provision to be inserted into the Workers Compensation Act 1987 (NSW). The new section 19B creates a presumption in favour of workers in certain high risk industries in relation to the contraction of COVID-19.
The new section 19B states that if a worker, during a time when the worker is engaged in ‘prescribed employment’ (see below) contracts COVID-19, for workers compensation purposes it is presumed that COVID-19 was contracted during the course of that employment.
The section also creates a presumption that employment was the ‘main contributing factor’ to the contraction of the disease. In order for a disease to be compensable under workers compensation in NSW, employment must be the main contributing factor to the development of, or the aggravation, acceleration, exacerbation or deterioration of, the disease.
‘Prescribed employment’ includes:
- the retail industry (other than businesses providing only on-line 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
- courts and tribunals
- correctional centres and detention centres
- restaurants, clubs and hotels
- the construction industry
- places of public entertainment or instruction (including cinemas, museums, galleries, cultural institutions and casinos)
- the cleaning industry
- any other type of employment prescribed by the regulations for the purposes of this definition.
The new provision also deals with the applicable date of injury for COVID-19 cases, and deems the injury to have occurred on the earliest of the following dates:
- The worker is diagnosed with COVID-19 by a medical practitioner;
- The worker is classified as having COVID-19 by a medical practitioner, or
- the worker dies as a result of COVID-19.
The provision applies to casual workers, however a casual worker must have performed that work on 1 or more of the 21 days preceding the date of injury.