With the pandemic still threatening our society and workplaces, we are often asked if employees have a right to worker’s compensation if they contract COVID-19 while doing their job. The short answer is yes – but proving it can be tricky and you may need a workers compensation lawyer to help you get a fair settlement.
Your right to a safe workplace
Both employers and workers are responsible for health and safety in the workplace. Your employer has a duty of care to create a safe workplace for everyone – staff, clients, customers, and visitors.
When it comes to COVID-19, this is even more important.
Your employer’s responsibilities
To help prevent the spread of COVID-19, your employer must:
- implement the state and national governments’ public health directives, such as mask-wearing and social distancing
- put a plan in place to respond to a COVID-19 outbreak
- offer measures such as working from home
- install barriers and screens to separate workers; create walkways through sites; and limit numbers in spaces like kitchens and meeting rooms
- implement good hygiene practices, like hand hygiene and workplace cleaning, including providing hand sanitiser and hand-washing facilities, as well as cleaning and disinfection services
- provide personal protective equipment (PPE) where necessary.
Employers should also train workers in these protective measures and display the COVID-safe plan in a highly visible place in the workplace.
Your responsibilities as a worker
As a worker, you must take reasonable care for your own health and safety and that of your fellow workers. You must also comply with all the health and safety regulations and procedures put in place to protect you.
This applies all the time, but particularly now to protect everyone from exposure to COVID-19.
No workplace is 100% COVID-safe
While most employers do their best to follow these guidelines, COVID-19 is a dangerous virus and outbreaks are still occurring in workplaces around Australia. Many workers – particularly ‘frontline’ health workers – are being exposed to this coronavirus, sometimes with fatal consequences.
In your workplace, this could occur due to:
- close contact with someone who has COVID or with an item they’ve touched
- inadequate personal protective equipment
- lack of deep cleaning regime
- lack of social distancing
- difficult access to hand-washing facilities
- lack of training in hygiene practices.
Does worker’s compensation apply to COVID?
Workers compensation, or WorkCover, is insurance paid by employers to cover them if a worker is injured or becomes ill as a result of doing their job, including:
- a physical injury
- disease or other physical condition, such as heat stroke or heart attack
- a psychological disorder, such as severe stress
- death.
If you’re exposed to COVID-19 due to your work and contract the virus, you can claim lost wages and related medical expenses.
Worker’s compensation will help pay your mortgage, bills, medical treatment and rehabilitation, and other expenses while you recover.
Stats on COVID claims in Australia
Safe Work Australia has collected data on worker’s compensation claims relating to COVID-19 throughout 2020.
During this year, 1222 workers’ compensation claims were lodged in Australia – of which 974 were accepted and, at publishing, 121 were pending.
A number of claims were rejected for various reasons, including because workers returned a negative test result or didn’t actually contract the virus at work.
Unsurprisingly, almost 70% of claims came from health care and social assistance industries – our frontline workers are at a very high risk of contracting COVID in their workplace.
Working from home
As an employee, you’re still covered by worker’s compensation if you work from home (i.e. you’re a remote worker). If you are injured or become ill while you’re doing your job – and primarily because of your job – you’re covered no matter where you do that job.
So while you may be covered while performing your work duties at home, but not while going for a walk on your lunch break.
What’s important is whether your employment was a ‘significant contributing factor’ in you contracting COVID.
Self-isolating prior to test results
If you need to self-isolate while waiting for a COVID-19 test result, but you don’t end up with a positive COVID-19 diagnosis, you probably won’t be covered by worker’s compensation.
WorkCover provides compensation for illnesses or injuries that occur while you’re doing your work. So just self-isolating doesn’t entitle you to compensation for lost income while you wait.
If you do get a positive test result, you then need to determine whether you contracted it while doing your work and because of your work.
This is a complex situation, so we would advise you to seek professional legal help before making a claim. An experienced COVID-19 worker’s compensation lawyer, like our team at Main Lawyers, can assess your circumstances and tell you where you stand.
Income loss due to shutdowns
Similar to self-isolating, you’re probably not entitled to wage compensation through worker’s compensation if your workplace shuts down due to COVID-19.
WorkCover will only cover your wages if you have an accepted worker’s compensation claim when your workplace closes.
Mental health issues due to COVID
Many workers are at increased risk of contracting COVID-19 (i.e. healthcare workers) or being affected by increased violence and harassment (i.e. retail and transport workers) due to COVID-19. These risks can increase anxiety and depression among these workers.
Similarly, workers who can’t avoid physical contact with people in their job may suffer constant stress and anxiety about inadequate protection and infection control.
Every worker has the right to feel safe when they go to work. Employers must take every precaution possible to protect workers from psychological harm due to the increased risks of COVID in their workplace.
Workers who suffer a physical or psychological injury at work due to these risks may be able to claim worker’s compensation.
Making a COVID-19 workers compensation claim
What you need to provide
The process for making a worker’s compensation claim is the same for COVID-19 as for other work-related injuries. You must prove that you contracted the coronavirus in your workplace and that it was a ‘significant contributing factor’ (such as your employer’s negligence, lack of training or supervision, or lack of adherence to COVID-related health and safety regulations).
You must have evidence, including your diagnosis confirmation, photos, emails, medical records, witness statements, and anything else that could help prove your case.
You should also keep notes about everything related to your claim, including:
- the dates that you visited your doctor
- when you informed your employer of your diagnosis
- when you first developed COVID-19 symptoms
- when and how you think you contracted the virus in the workplace.
Starting the claims process
If you are diagnosed with COVID-19 and believe you contracted it due to your work, it’s essential to start your claim for worker’s compensation as soon as possible. When you visit your doctor, provide your full work history and get a medical certificate.
The most important thing is to report your diagnosis and any potential workplace exposure as soon as it occurs.
You should also contact a worker’s compensation lawyer, like the team at Main Lawyers, to get advice on submitting your claim. We will ensure you include everything possible to help get the settlement you deserve. We will also submit paperwork on your behalf and keep you updated throughout the process.
Note: If there is a case of COVID-19 in a workplace, the government’s health department will need to start contact tracing. So you may need to provide details of where you’ve been and everyone you’ve been in contact with. We advise you to follow all their instructions to help protect as many other people as possible.
How your WorkCover claim is assessed
Once you submit your claim, the insurer will consider various factors to decide whether to approve compensation, including evidence that:
- you have contracted COVID-19
- you meet the legal definition of ‘worker’ in the organisation
- your work contributed significantly to you contracting the virus.
It might not be easy to establish this evidence for COVID-19. If you are a frontline medical worker, teacher, or other workers in a high-risk work environment, you might find it fairly simple to show that your employment puts you at risk.
Other workers may find it more difficult if the source of infection isn’t known or there are many places where you could have contracted the virus. You may have a harder time proving that your workplace environment was at fault. For these complex situations, we recommend getting professional assistance from a worker’s compensation lawyer.
How we can help
Worker’s compensation claims can be complicated at the best of times, but even more so when you need to demonstrate exposure to the coronavirus in your workplace due to employer negligence.
Over the last few years, at Main Lawyers, we have gained a lot of experience in negotiating worker’s compensation claims relating to COVID-19 exposure. Our dedicated team will work to help you prove your claim and get you a fair settlement.
Start by contacting us for a no-obligation chat about your situation. We look forward to helping you through this time.
