On 14 May 2020, the COVID-19 Legislation Amendments (Emergency Measures – Miscellaneous) Act 2020 was enacted, and a new provision (section 19B) was added to the Workers Compensation Act 1987 to provide a beneficial presumption for select workers who contract COVID-19.
Prior to that recent change, to qualify for workers compensation benefits, workers diagnosed with COVID-19 were required to prove that they likely contracted the virus in the course of their employment (as opposed to contracting it in another context, such as whilst grocery shopping); or in other words, that their employment was the main contributing factor to their contracting the disease.
In many cases, this was difficult to prove, and therefore prevented workers from accessing workers compensation benefits in a timely manner, or at all, in a time of need. Those benefits include weekly payments for time off work, relevant medical expenses, a lump sum payment for any permanent impairment caused by the illness, and/or death benefits.
The amendment to the law makes it so that certain workers no longer need to prove that their employment was the main contributing factor to them contracting COVID-19.
Instead, for the workers listed below, it will be presumed that their employment was the likely cause, and should their employer or their insurer wish to dispute that presumption, the (often difficult) burden of proof will fall on the employer.
These are the industries to which the beneficial presumption applies:
- The retail industry (other than businesses providing online retail only).
- The healthcare sector, including ambulance officers and public health employees.
- Disability and aged care facilities.
- Education institutions including pre-schools, schools and tertiary institutions (other than establishments providing only online teaching services).
- Police and emergency services.
- Refugees, 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 or any other type of employment prescribed by the regulations for the purpose of this definition (to be advised).
Casual workers in the prescribed industries will also be covered if they have performed casual work in that employment on one or more of the 21 days leading up to the date the infection was diagnosed.
The date of diagnosis by a medical practitioner using a prescribed test (or the date of death if that precedes diagnosis) will serve as the deemed date of injury for the purpose of the claim.
Unless the contrary is established, those listed workers will be presumed unfit for work and therefore receive weekly payments for their loss of earnings for the period commencing the date of injury and ending on the date seven days after a medical practitioner certifies the worker no longer has COVID-19, subject to any further dates set by the regulations.
This is an important change to the law, and will make it far simpler for workers to claim workers compensation entitlements if they contract COVID-19 whilst working in one of the above listed industries.
If you have contracted COVID-19 and you believe it has occurred as a result of your employment, even if you do not work in one of the prescribed industries, we may still be able to assist you to ascertain whether the infection was work-related, and your entitlements to workers compensation benefits.
100% of any workers compensation benefits obtained will be payable to you, with no deduction for fees.
Call one of our experienced workers compensation lawyers today for our advice.