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Australia - Coronavirus - A Workers' Compensation Perspective

13 March 2020
In the wake of the World Health Organisation (WHO) declaring COVID-19 a pandemic, employers across Australia and the world are navigating an ever changing landscape of issues for their businesses. From a workers' compensation perspective, employers should be alive to the risks that flow from employees contracting the virus.

Would an employee be entitled to workers' compensation in the event they contracted coronavirus?

Arguably yes. Whilst each state and territory have slightly varying tests in relation to whether a worker has sustained an injury, the common issue to be determined by the insurer will be whether the injury has arisen out of, or in the course of, employment.

Accordingly, the worker needs to demonstrate a causal connection between the onset of coronavirus and their employment. This is a factual and medical exercise which requires an assessment of whether or not employment is the "real or effective cause" or "merely an incident which precedes in the history of the narrative of events". 

Currently, infected individuals are being tracked and monitored (as best as can be done) so as to contain the risk of infection to others. Therefore, presently it would be relatively simple to identify the cause of the infection in the event an employee who is infected with coronavirus attends their place of work, and spreads the infection to other workers in the same workplace. Alternatively, if it can be shown that a member of the public had coronavirus and attended a worksite, then this would also likely be compensable (absent, say, evidence of extensive travel or other likely exposure of the individual).

The causal connection with employment will be satisfied if a worker can demonstrate that, had they not attended the office on the relevant day or days, they would probably not have contracted coronavirus. Applying the legislation beneficially means that in these cases, an employee is likely to demonstrate that their employment is a significant contributing factor to their sustaining coronavirus - employment operates as the effective cause, as opposed to a "mere incidence". However, if coronavirus continues to spread and becomes more prevalent (like the common cold or flu), identifying the causal link between employment and the injury will become more difficult and thus make workers' compensation claims less likely. 

To safeguard staff, many employers are directing staff to work remotely.  Depending on individual circumstances and medical and government advice, this may increase as has transpired already in northern Italy. 

What are the workers' compensation ramifications for employees working remotely?

In the event employers provide a directive to staff to work remotely, this broadens the workplace in which an injury can occur and should be viewed from the perspective of both compensation and safety.  Any remote space where an employee is carrying out their duties then becomes the 'workplace' and it is possible that injuries that occur at home are compensable under workers' compensation legislation. Evidentially, it will be difficult to disprove a workplace injury if an employee contends that they were working remotely at the time that an injury was sustained.  Safety obligations also necessitate that an employer assess the safety of the home or remote workplace, or at the very least, ensure some risk assessment process be undertaken by an employee who is directed to work remotely.

DWF Australia has a multi-disciplinary team in place to address the legal ramifications of coronavirus for Australia businesses, which is led by Matthew Smith our Head of Employment, Safety and Regulatory. Please contact Matthew or Damien van Brunschot our Head of Insurance if you require further information or advice.  

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