May 2020

Presumption of Injury for prescribed workers contracting COVID-19

The COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Act 2020 passed both Houses of Parliament on 13 May 2020 and received assent on 14 May 2020.

This Act amends a number of Acts and Regulations (some 34 in all) in response to the COVID-19 pandemic.

This bulletin relates to amendments to the Workers Compensation Act 1987 that have been made in order to provide that there will be a presumption of injury in favour of a worker in prescribed employment who contracts COVID-19.

The amendment relates to both exempt and non-exempt workers and applies to a worker who has confirmed COVID-19 before the commencement of the amending Act.

A new section 19B is inserted in the Workers Compensation Act 1987. This section creates a presumption that if a worker in prescribed employment contracts COVID-19 then it is to be presumed that the disease was contracted in the course of employment and that the employment was a substantial and main contributing factor to contracting the disease.

In other words, it is presumed to be an injury satisfying all the necessary requirements of Section 4 and Section 9A of the 1987 Act.

The date of the injury is deemed to be when the worker is diagnosed by a prescribed test; is classified by a medical practitioner as having COVID-19 or dies as a result of COVID-19, whichever is the earliest.

The worker is presumed to be incapable of work as a result of COVID-19 for the period starting on the date of the injury and ending on a date that is 7 days after the date on which the worker is certified as no longer having the disease (unless another date is established by Regulation).

The presumption applies to casual workers only if they have performed casual work on 1 or more of the 21 days preceding the date of injury.

The presumption of injury can be rebutted, but the onus is then on the employer to establish that the disease was not contracted in the course of employment and that employment was not the substantial or main contributing factor (as the case may be).

As mentioned, the presumption only operates in favour of workers in prescribed employment.

Prescribed employment means employment in any of the following:

(a) the retail industry (other than businesses providing only on-line retail),

(b) the health care sector, including ambulance officers and public health employees,

(c) disability and aged care facilities,

(d) educational institutions, including pre-schools, schools and tertiary institutions (other than establishments providing only on-line teaching services),

(e) police and emergency services (including fire brigades and rural fire services),

(f) refuges, halfway houses and homeless shelters,

(g) passenger transport services,

(h) libraries,

(i) courts and tribunals,

(j) correctional centres and detention centres,

(k) restaurants, clubs and hotels,

(l) the construction industry,

(m) places of public entertainment or instruction (including cinemas, museums, galleries, cultural institutions and casinos),

(n) the cleaning industry,

(o) any other type of employment prescribed by the regulations for the purposes of this definition.

This is a high level summary; there is considerably more detail in the legislation and it includes Regulation making power for matters such as permanent impairment; premium impact and financial risk sharing among insurers.

Author: Bruce McLean