With the coronavirus lockdown coming to an end, many employers and building owners could be liable to pay workers compensation for Covid to people who acquire the illness at their workplace or premises.
Claims could surge as employees return to the workplace and customers rush back to shop, dine and socialise.
Workers compensation costs could skyrocket in coming months
The State Insurance Regulatory Authority (SIRA) recently estimated it could cost up to $638 million over the next 12 months in workers compensation for Covid cases.
SIRA said its estimate did not include costs associated with psychological injuries or the increase in management costs for insurers.
The authority revealed there had been 1,871 claims for workers compensation since the pandemic began in 2020, through to 15 October 2021. This included 1,477 claims since 16 June 2021, when the Delta outbreak started. (See Workers Compensation Claim Statistics, SIRA, October 2021.)
Payments for Covid-19 claims reached $7.1 million to July 2021, with an estimated gross cost of $13.9 million for all of 2021.
Industries most affected by claims for workers compensation for Covid
According to SIRA figures, supermarkets and grocery stores were the most impacted industries, with 279 Covid-19 notifications and claims made between 16 June 2021 and 24 September 2021.
Next came takeaway food outlets, police, correctional services, department stores and hospitals. Following these were fruit and vegetable wholesalers, building and cleaning services, healthcare providers and schools.
Covid-positive essential services workers do not need to prove source of infection
In May 2020, the NSW government introduced legislation that automatically presumes that essential services workers contracted Covid-19 in the workplace. These workers include hospital staff, paramedics, teachers, hospitality, entertainment, retail and construction workers. (See Changes to workers compensation in NSW give better protection to workers who get coronavirus, June 2020.)
Further to this, in July 2020 the government made additional legislative changes.
The Workers Compensation Amendments (Consequential Covid-19 Matters) Regulation 2020 extended the list of essential services workers to include those working in cafes, supermarkets, funeral homes and childcare facilities. (See Covid-19 workers comp amendments broaden range of protected workers in NSW, September 2020.)
Under section 1.34 in the COVID-19 Legislation Amendment (Emergency Measures - Miscellaneous) Act 2020, these essential services workers will not need to prove where they were infected.
Non-essential services workers with claims for workers compensation for Covid
Workers in other industries will still need to prove they contracted the virus while in their workplace or while visiting certain business premises, and that the business did not take measures to minimise the risk of Covid-19 transmission.
It could be difficult to establish where someone contracted Covid. They will be required to prove they were infected at work, rather than on their way there, at a restaurant or pub, or while with friends or family. This is where evidence gained through genomic testing and contact tracing can be extremely helpful.
What can businesses do to stop the spread in the workplace?
Businesses should take extra safety precautions as part of their duty of care to employees and customers.
This includes providing rapid antigen tests and ensuring adequate ventilation and airflow. It is also imperative to continue using masks, maintaining social distancing and insisting on double vaccinations where there is a potential risk.
Aged care employee lawfully sacked after refusing to be vaccinated
The Fair Work Commission recently upheld the right of a business to sack an employee at an aged care facility who refused to get a flu shot as required under public health orders. (See Jennifer Kimber v Sapphire Coast Community Aged Care Ltd [2021] FWC 1818.)
Importantly, this was not a ruling that gives a universal right to sack the unvaccinated. If there was no such public health order in place, it would still be in dispute whether employers have a right to sack workers who refuse to be vaccinated against Covid-19.
Can managers and directors be held liable for Covid infections in the workplace?
While it is not likely that a manager or director would be held personally liable for the spread of Covid in the workplace, it is not impossible. (See Liabilities of directors and managers during the coronavirus pandemic, March 2020.)
To protect yourself from legal action, it is important to comply with all public health orders. If there is any uncertainty, seek legal advice before making any decision.
Emily Wittig
Employment law
Stacks Collins Thompson
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
