Summary

The COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 No 5 (‘the Act’) came into force on Thursday, 14 May 2020.

Insofar as workers compensation is concerned, the Act introduces a presumption for certain categories of workers that, in the event they contract COVID-19, their disease will be compensable unless the contrary is established.

Who Do the Amendments Apply To?

The Amendments apply only to workers who contract COVID-19 whilst working in prescribed employment. This is defined as employment in the following:

• The retail industry (excluding purely on-line businesses)
• The health care sector, including public health employees
• Police and emergency services
• Firefighters (including rural fire services)
• Ambulance officers
• Educational institutions, including pre-schools, schools and tertiary institutions (other than establishments providing only on-line teaching)
• The cleaning industry
• The construction industry
• Restaurants, clubs and hotels
• Disability and aged care facilities
• Refuges, halfway houses and shelters
• Passenger transport services
• Courts and tribunals
• Correctional and detention centres
• Places of public entertainment or instruction (including cinemas, museums, galleries, cultural institutions and casinos)
• Any other type of employment that may be prescribed by the Regulations

The Act applies to casual workers in prescribed employment only if they worked on one or more of the 21 days preceding the date of injury.

The Presumption

The Act inserts a new section 19B into the Workers Compensation Act 1987 which specifically relates to COVID-19.

Section 19B(1) provides that if a worker contracts COVID-19 during a time when the worker is engaged in prescribed employment, then for workers compensation purposes, it is presumed (unless the contrary is established) that the disease was contracted by the worker in the course of the employment and the employment was the main contributing factor to contracting the disease (or, for exempt workers such as firefighters, paramedics and police officers, employment was a substantial contributing factor to contracting the disease).

Date of Injury

Section 19B(4) provides that the date of injury is to be determined by whichever of the below occurs first:

(a)   The worker is diagnosed by a medical practitioner with COVID-19 following a prescribed test result,
(b)   The worker is classified by a medical practitioner as having COVID-19 (applying epidemiological or clinical criteria prescribed by the Regulations),
(c)   The worker dies as a result of COVID-19.

Capacity for Work

Section 19B(5) provides that a worker is presumed (unless the contrary is established) to be incapable of work as a result of COVID-19 from the date of injury until:

(a)   On a date established in accordance with the Regulations; or
(b)   If no Regulations are made, on a date that is 7 days after the date that a medical practitioner certifies that the worker no longer has the disease.

Permanent Impairment

The Act itself does not address claims for permanent impairment arising out of COVID-19. However, it does provide Regulation-making powers which include the application of the Act to workers who suffer permanent impairment as a result of COVID-19.

Workers Who Contracted COVID-19 Before 14 May 2020

The Act permits the making of Regulations to address these claims. Further, the Act provides that until such Regulations are made, the Act extends to a worker who contracted COVID-19 before 14 May 2020.

What Does This Mean?

For workers who were working in prescribed employment at the time they contract COVID-19, it is presumed that their injury is compensable under the Workers Compensation Act 1987, unless evidence can be obtained to rebut that presumption.

Whilst it remains to be seen what evidence the Workers Compensation Commission will require to rebut the presumption, it is foreseeable that this could occur in cases where a worker has not had work-related exposure to COVID-19, despite working in a prescribed industry. For example, a payroll manager for a construction company who has been working from home since the pandemic began. It is also possible that the presumption could be rebutted where there is evidence that the worker has had close personal contact with a confirmed case of COVID-19, and their work-related exposure was limited.

There are also other interesting questions that arise from the Amendments. The Act refers to a worker needing to work in prescribed employment at the time they contract COVID-19. However, the date of injury is not the date of contraction, but rather the date of diagnosis (or death). Further, current medical literature indicates that it is difficult to confirm the exact time of contraction, which could foreseeably cause complications where, for example, a worker is employed by multiple employers over the potential ‘contraction’ period, particularly if one employer is not in a prescribed industry. In addition, the categories of prescribed employment are broad, and may give rise to questions around what constitutes, for example, employment in the “construction industry”.

At this stage, no Regulations have been enacted. However, we anticipate that in due course a supporting Regulation will be enacted which will provide further clarification around the practical application of the Amendments.