• Helen

The Presumption of Injury in Workers Compensation Covid Cases & Other Risks

Updated: Aug 27, 2020

According to Jacinda Arden, Alan Jones’ recent retirement announcement from radio, is proof that the virus has been eradicated from NSW.  Regrettably, this hasn’t stopped the passing of the COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) which received assent on 14 May 2020 and amended numerous pieces of legislation including the NSW Workers Compensation Act 1987.

New s19B of the Workers Compensation Act 1987

The amendment 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.

What is 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. Returning to Work, Risks and WHS Duties

With restrictions easing and many businesses being given the green light to start conditionally operating again, work health and safety risk management will be a key driver for change in the workplace. Employers will need to start planning for the obvious physical changes that will need to occur to enable staff to work safely together, but also contemplate how to best support good mental health where there may be increased general anxiety connected with COVID-19 due to work changes. And let’s not forget the legal risks around employees seeking greater flexibility, including carers and vulnerable people who are at greater risk of serious infection from COVID-19. How employers make decisions about employee flexibility and the reasons that underpin these decisions may result in potential discrimination and adverse action claims, as well as possible breaches of the Fair Work Act, awards and enterprise agreements. Do you have your Tools in your Tool Kit? Safe Work Australia’s website contains some highly useful information on physical distancing, cleaning and health, hygiene and facilities, all of which will assist businesses to address the immediate need to create COVID-19 safe workplaces. An employee Covid-19 policy will also be a useful tool to mitigate the risks associated with staff returning to work and we have been busy working with our clients in developing these. As always, thank you for your support of the work we do and feel free to reach out if we can help you in managing the risks of returning to the new Covid normal.

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