Do employers needs to be concerned about liability in relation to Novel Coronavirus?

By now we are all receiving regular updates on the potential exposure to us as individuals, businesses and as a society in relation to the global pandemic we are currently experiencing. Maintaining up to date knowledge through the relevant government bodies and news reports is recommended to stay abreast of any last minute changes, particularly in relation to group gathering, social isolation/distancing and workplace staff number requirements.

As a wellbeing and risk mitigation professional, it is essential that you ensure staff are aware of the governmental recommendations and that they adhere to protocol. As a business, you should be able to demonstrate your duty of care to your staff, be that by toolbox meetings, memorandums/notices, provisions of additional PPE (be it gloves, masks or hand sanitiser and medical wipes) and avoid congregating staff into small, poorly ventilated areas. Apart from the obvious benefits of avoiding the spread of the virus amongst your team members and wider organisation – this assists you to demonstrate a duty of care and minimisation of exposure to the virus during the course of employment.

Unfortunately, there is an expected increase in claim lodgements as a result of this phenomenon. There will be those individuals who may submit claims for COVID-19 if they believe that they were exposed to it during the course of their employment. Also, during periods of economic difficulty, there is often an increase within casual staff or ‘vulnerable’ staff who are fearful of losing their jobs. A successful claim would result in entitlements in the way of weekly benefits for ongoing periods. Whilst we have not yet tested a claim lodged for COVID-19, we must be prepared for the possibility.

In the last 48 hours, I have noted communication from trade union bodies to their members recommending the submission of a claim for workers compensation upon a positive test result for COVID-19. One national federation has encouraged the claim form to be lodged as soon as a diagnosis is given. Also, WorkCover governing bodies are starting to field queries from employees regarding their rights if infected. WorkCover QLD for example has stated:

When deciding whether to accept a statutory claim for compensation, which includes a claim relating to a diagnosis of COVID-19 WorkCover will apply specific criteria from the Workers’ Compensation and Rehabilitation Act 2003 (the Act). Criteria will include, but not be limited to, whether:

·        the claim was made within the required timeframes;

·        the worker was in fact a ‘worker’;

·        an injury (diagnosis of COVID-19) has occurred;

·        the exposure to COVID-19 occurred in the work environment; and

·        the work exposure was a significant contributing factor to the COVID-19 diagnosis.

WorkCover will rely on information from yourself, your employer and medical practitioner when using the criteria to determine whether your claim will be accepted.

Note, that whilst worker testimonials and doctor information is relevant, they will be also be looking at the employer’s commentary. This is where an ability to demonstrate your duty of care may be of assistance. It is expected that all state jurisdictions may look at this in the same vein.

For those of you with large numbers of casual employees (particularly if you believe your industry may experience difficulty in the coming months) any incident reports and certainly claim forms should be immediately reported to your risk professional. There has already been a trend noted of an increase in incidents and claim forms from casual staff in the past 5 days.

We need to look at the peripheral impact of COVID-19 to Workers Compensation as well:

  • Increased workplace stress due to business interruption or demands, fear of exposure, etc.;
  • Reduced ability to facilitate RTW to injured workers, thus prolonging claim tenure and increasing annual premiums;
  • Inability for medical practitioners to treat injured workers (therapies, surgeries, etc) due to the demand on the medical field;
  • This includes potential acceptance of claims due to lack of available independent medical examiners during the determination of liability process.

Whilst we all need to focus on the containment of this virus as a society, and protect our businesses from financial impact – it is prudent on all to ensure we continue to meet our statutory obligations in relation to Health & Safety and Wellbeing, Return to Work, and all other employee related matters.

I would encourage you to contact me at any time to discuss any concerns you have about your staff, or how this pandemic may impact your business.

Misha Wright-Rodionov

Senior Account Manager