On 14 May 2020, the COVID-19 Legislation Amendment (Emergency Measures Miscellaneous) Act 2020 (NSW) amended the Workers Compensation Act 1987 [the WCA] to include a new s19B, which provides a presumptive right to compensation in respect of the disease COVID-19 for workers in prescribed employment. Workers with a heightened risk of contracting COVID-19 (which is a disease applying s4(b)(a) WCA) are the object of the amendment which provides: If a worker contracts COVID-19 during a time engaged in ‘prescribed employment’, the disease is presumed, unless the contrary is established, to have been contracted in the course of employment In the case of an exempt worker [police officers, paramedics and firefighters], it is presumed the employment was a substantial contributing factor to contracting the disease In the case of any other worker, the employment is presumed to be the main contributing factor to contracting the disease. A worker is taken to have contracted COVID-19 if diagnosed as such by a medical test compliant with the regulations which was carried out for the purpose of determining whether the worker has the disease. Alternatively, a worker is taken to have contracted COVID-19 if the worker is classified as such by a medical practitioner having satisfied epidemiological or clinical criteria which will be prescribed in the regulations. ‘Prescribed employment’ is defined in s19B(9) to be employment in any of the following: The retail industry (other than businesses providing only on-line retail) The health care sector, including ambulance officers and public health employees Disability and aged care facilities Educational institutions, including pre-schools, schools and tertiary institutions (other than establishments providing only on-line teaching services) Police and emergency services (including fire brigades and rural fire services) Refuges, halfway houses and homeless shelters Passenger transport services Libraries Courts and tribunals Correctional centres and detention centres Restaurants, clubs and hotels The construction industry Places of public entertainment or instruction (including cinemas, museums, galleries, cultural institutions and casinos) The cleaning industry Any other type of employment prescribed by the regulations for the purposes of the definition. For the purposes of the WCA, the date of injury in relation to COVID-19 will be the date whichever of the following first occurs: The worker is diagnosed by a medical practitioner as having the disease following a prescribed test The worker is classified by a medical practitioner as having the disease, following satisfaction of epidemiological or clinical criteria The date the worker dies as a result of COVID-19. A presumption of no employment capacity, unless the contrary is established, is also enshrined in the amendment for the period starting from the date of injury and ending (unless sooner due to the death of the worker) 7 days after a medical practitioner certifies that the worker no longer has the disease. In the case of casual employees, the presumption in favour of the disease being work related only applies where the worker has performed at least 1 day of work in the 21 days preceding the date of injury. It is important to note the presumptions in s19B are rebuttable; however, the limited timeframes set by ss274 and 279 of the Workplace Injury Management and Workers Compensation Act 1998 may make the accumulation of rebuttal evidence difficult. A mechanism for defeating those difficulties would be commencement of provisional payments in accordance with s267 of the 1998 Act. The savings and transitional provisions in Schedule 6 have also been amended to give the new s19B retrospective operation. The above content was prepared on the basis of applicable legislation, government programs and initiatives that were in place as of the date of publication. Given the ongoing evolution of both the COVID-19 pandemic and frequent consequential changes to the various laws and programs within all Australian states and territories, readers should seek legal advice on the current situation as applicable to their specific circumstances before taking any action in relation to the above.
