COVID and Workers Compensation

Public news

Can COVID become a workers compensation issue? The short answer − yes.

In a post-pademic world and with the borders in South Australia recently opening to the eastern states, many members are grappling with whether or not to introduce vaccine requirements for employees and visitors to their business.

When considering this issue, a common question posed by members is what happens if one of my employees contracts COVID at work? Can they make a workers compensation claim?

In short, yes. If an employee becomes infected with COVID in the course of their employment and employment is a significant contributing cause of the illness, the employee would be eligible to make a workers compensation claim under the Return to Work Act 2014 (SA).

This was recently illustrated in the decision of the NSW Personal Injury Commission in Sara v G & S Sara Pty Ltd [2021] NSWPIC 286. Whilst workers compensation schemes differ somewhat from state to state, they largely operate on the same general principals.

In this case, the employee Mr Sara, tragically passed away after suffering respiratory failure as a result of contracting COVID. Mr Sara’s widow subsequently brought a claim for death benefits and other compensation against the employer.

The principal issue for determination in this case was whether Mr Sara contracted COVID in the course of his employment.

At the time of contracting COVID and becoming unwell, Mr Sara (who was also a director to the employer), was on a work trip in the US.

The employer argued that at the time of contracting COVID, Mr Sara was undertaking work for the US based company and not for the Australian based employer. This argument was rejected by the Commission.

A further issue for consideration was precisely when Mr Sara contracted COVID, with the employer arguing that Mr Sara contracted COVID in a social setting, rather than a work setting.

After considering the medical evidence before it, the Commission found that Mr Sara was exposed to and contracted the COVID virus during his travel to the US at some stage between boarding his flight at Sydney Airport and his arrival in New York. The Commission found that this travel period was work-related.

The injury was ultimately found to be compensable, and Mr Sara’s widow was able to access compensation.

Whilst the facts of this matter occurred relatively early in the pandemic and therefore it is unlikely that Mr Sara was vaccinated, this decision is a timely reminder to members of the more serious potential implications for employees who are exposed to COVID in the course of their employment.

It is also serves as a timely reminder to ensure that members are undertaking adequate risk assessments, particularly for those employees who may travel interstate or overseas as part of their work.

If you have any questions about what COVID could mean to your business specifically, please contact our WR team at wr@mtasant.com.au, or call 8291 2000.