In what is believed to be the first decision of its kind, the Personal Injury Commission of New South Wales has found that an employee was in the course of his employment when he contracted COVID-19 and his employer was held liable to pay compensation to his widow.
The decision in Sara v G & S Sara Pty Ltd  NSWPIC 286 highlights the workers compensation risks faced by employers associated with COVID-19 and the importance of managing those risks.
The applicant was the widow of Georges Sara, who died on 21 November 2020 after contracting COVID-19 whilst on a work trip to the United States.
The applicant claimed that Mr Sara's employer was liable for his death under the workers compensation legislation of New South Wales.
The purpose of Mr Sara's trip had been to promote the business of his company, Stoneglass Australia, which manufactured and sold dental prosthetics. Stoneglass Australia had begun to expand operations into the US, and meetings were organised at various universities and dental surgeries to aid the rollout.
The main issue in the case was whether Mr Sara was in the course of his employment when he contracted COVID-19.
The Commission found that, on the balance of probabilities, Mr Sara was exposed to and contracted the COVID-19 virus during the period of travel from boarding his flight at Sydney Airport and his arrival at the Holiday Inn hotel in New York.
The Commission concluded that:
- Mr Sara's injury arose during his employment, as he was on a work-related trip at the time he contracted COVID-19. The injury was deemed to have occurred on 23 July 2020, when his first positive test result for COVID-19 was returned.
- Employment was a direct contributing factor of his death. It did not matter what activity Mr Sara was undertaking at the exact time he caught the virus. The period of travel to the United States was induced and encouraged by Stoneglass Australia and so was work-related.
As a result, the applicant was awarded a dependency payment of $834,200. Due to the large quantum of the medical expenses claimed, $11M, a further hearing was set to assess that aspect of the claim.
Not all the activities on a work trip may be considered as occurring in the course of a worker's employment. However, activities which are induced and encouraged by the employer will be in the course of a worker's employment.
In this case, Mr Sara's period of travel to the United States was clearly within the course of the employment as that activity was induced and encouraged by Stoneglass Australia, his employer.
Employers need to be aware that employees may be entitled to workers compensation benefits if they contract COVID-19 in the course of employment and should therefore consider policies to minimise this risk – especially for workers who travel interstate or overseas for work.
An employer who fails to implement COVID-19 risk mitigation strategies may be falling short of its duties under work health and safety legislation.
Gilchrist Connell's Workers Compensation and Workplace Law teams can assist employers who need advice in relation to managing the risks of COVID-19 related compensation claims and to provide advice in relation to vaccination policies tailored to your workplace.
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