NSW introduces changes to workers compensation laws amid COVID-19
On 14 May 2020, the COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Bill 2020 [NSW] (“the Bill”) was passed by both houses of Parliament and commenced operation in NSW. Amongst other changes, the Bill added section 19B to the Workers Compensation Act 1987 (NSW) (“the Act”); presumptions relating to certain employment in relation to COVID-19.
What are the changes that affect workers engaged in prescribed employment?
Under section 19B of the Act, if a worker is engaged in “prescribed employment” and contracts COVID-19, there is a presumption that the worker contracted the disease during the course of their employment.
Under the Act, the date of injury is presumed to be when the worker is first diagnosed by a medical practitioner as having COVID-19 or when the worker dies as a result of COVID-19. There is also a presumption that the worker is incapable of work, starting from the date of injury through to 7 days after a medical practitioner certifies the worker no longer has COVID-19.
The changes also apply to all casual workers in prescribed employment who have performed work at least once in the 21 days preceding the date of injury.
This has the effect of reversing the burden of proof in that the employer will need to show that the worker did not contract COVID-19 during the course of their employment if they are to deny a claim for workers compensation.
Which workers are in “prescribed employment”?
“Prescribed employment” includes a wide range of industries that incorporate essential workers.
Some of these industries include:
- the health care sector;
- educational institutions (including pre-schools, schools and tertiary institutions providing face to face learning);
- retail (other than those providing online services only);
- police and emergency services;
- passenger transport services; and others.
What do the changes mean for workers in prescribed employment?
Prior to these changes, workers would have had to prove that their employment was a ‘substantial and contributing factor’ to them contracting COVID-19.
Where the source of infection is unknown, contact tracing for those infected by COVID-19 is still a significantly complex process. The changes have provided some important protections for workers who contract COVID-19 while working in prescribed employment as it reverses the burden of proof onto the employer. This, in turn, frees the worker from needing to prove where or how they contracted the infection.
This means that these workers can lodge a workers compensation claim for wage cover and medical assistance if they are unable to work due to contracting coronavirus. It also means that dependents of workers in prescribed employment who have died as a result of COVID-19 will be entitled to bring a claim for death benefits.
If you’re a “prescribed worker” and have contracted COVID-19, you are likely to be eligible for workers compensation benefits. We can assist you with your claim; in particular where your employer has rejected your claim. You should seek early advice and assistance from your Union or from a lawyer experienced in NSW workers compensation claims.
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This article relates to Australian law; either at a State or Federal level.
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances. For further information, please do not hesitate to contact Hall Payne Lawyers.